L.N.MITTAL,J. - (1.) DEFENDANTS no.5 and 6, who were successful in the trial court, but have been partly unsuccessful in the lower appellate court, have filed this second appeal.
(2.) SUIT was filed by respondents no. 1 and 2/plaintiffs against proforma respondents no.3 to 5 as defendants no.1 to 3 (State of Haryana and its Authorities) and against Balwant Singh ­ father of appellants as defendant no.4 and against appellants as defendants no.5 and 6. The plaintiffs alleged that they are owners of the land detailed in paragraph 2 of the plaint, on the basis of exchange, vide mutation no.867, the exchange having taken place with Sadhu, Surjan and Tikka. Plaintiffs got the said land along with all rights appurtenant thereto including passage, khal (water course) etc. There existed a water course as well as passage adjoining the land of the plaintiffs, who have been using the same for access to their aforesaid land and for irrigation thereof. The said water course and passage also pass through khasra nos. 23/1, 18/2 and 13/1, which is the bone of contention. The defendants threatened to demolish and obstruct the same. Plaintiffs sought permanent injunction restraining the defendants from doing so. Defendants no.1 to 3, in their written statement, controverted the plaint averments and denied the existence of disputed water course. Application moved by plaintiffs before defendant no.3 for restoration of the said water course was decided with mutual consent of plaintiffs and defendant no. 5. Defendants no.5 and 6 also contested the suit and denied exchange of land by Sadhu etc. with plaintiffs and also denied existence and user of disputed water course and passage by the plaintiffs. The defendants claimed to be owners in possession of the disputed land through which existence of alleged water course and rasta has been pleaded by the plaintiffs. Various other pleas were also raised.
(3.) LEARNED trial court dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been partly allowed by the lower appellate court and the suit has been partly decreed regarding disputed passage existing in eastern side of the disputed khasra nos. 23/1, 18/2 and 13/1. Feeling aggrieved, defendants no.5 and 6 have filed this second appeal. I have heard counsel for the parties and perused the case file.;