Siddharth, J. - (1.) Heard Shri Dharam Pal Singh, learned Senior Advocate, assisted by Shri Anshu Chaudhary, learned counsels for the appellant, Sri Ramesh Rai, learned counsel appearing on behalf of respondent no. 2 and Shri Bharat Bhushan Paul, learned counsel appearing on behalf of respondent nos. 1 and 3.
(2.) This is defendant's second appeal directed against the judgment and decree dated 7.10.2005 passed by the Additional District Judge, Hathras dismissing the Civil Appeal no. 9 of 2004 and confirming the judgement and decree dated 26.5.2004 passed by Civil Judge(S.D.) Hathras in Original Suit no. 45 of 1999 instituted by the plaintiff for mandatory and permanent injunction against the defendants.
(3.) Plaintiffs instituted the suit stating that they are owners in possession of plot no. 2107,Khautani no. 25, Area 0.127 hectare situated in Bara Bazar, Sikandrarau district Mahamayanagar, given at the foot of the plaint; that plaintiff no.2 instituted original suit no. 284 of 1994, Govind Babu v. Ashok Kumar, in the court of Munsif, Hawali, Aligarh wherein plaintiff no.2, Govind Babu, has been shown as owner in possession of V share of the disputed house and it was decided in terms of compromise between the plaintiff nos. 2 and 3 and defendant no.3 was declared owner of the half share; that thereafter defendant nos. 2 and 3 sold their shares to defendant no.1 which was 21x15 ft. shown in the plaint map;that the defendants in the absence of plaintiff, have closed the passage being used for ingress and egress of the plaintiffs towards the disputed property;that defendant no.2 has let out the closed passage to the defendants nos. 1,3 and 4 as tenants and they have illegally encroached upon the same; that the passage was being used by the plaintiff for approaching the property and, therefore, their easementary rights, being enjoyed for 40 years, have been infringed; that despite notice dated 30.1998, defendants have not opened the disputed passage, hence property has become land locked and its value has diminished; that they have no other passage and they had been using disputed passage from the time of their ancestors and hence suit was instituted praying for decree of mandatory injunction against the defendant No.2 for removing the wall from the blocked passage and not to interfere in their peaceful possession over their property.;