- (1.) The defendants/appellants have directed the regular second appeal against the judgment and decree dated 27.9.2011 passed by Shri, Sukram Pal, learned Additional District Judge, Fast Track Court, Sirsa, vide which the appeal preferred by the defendants/appellants against the judgment and decree dated 15.12.2010 passed by Shri Sudhir Parmar, Additional Civil Judge (Senior Division), was dismissed.
(2.) Briefly stated, Sunder Singh filed a suit for declaration alleging that he is entitled to use the passage fully described in the heading of the plaint. It has been further averred that the defendants No.1 to 5 are owners of land measuring 9 Kanals 16 Marlas comprised in sq. no.12 killa nos. 3 (3-0) and 4 (1-16) situated in village Bhangu, Tehsil and District Sirsa. The said land is under the cultivating possessions of the plaintiffs as a tenant on payment of 1/3rd batai. The revenue record is also in favour of the plaintiff and in view of the order passed by the Naib Tehsildar on 28.11.1983 on a written compromise of the parties, the plaintiff stands recorded as a tenant in the said land. The plaintiff along with Mithu Singh pro forma defendant No.6 and his nephews Nazar Singh and Major Singh is recorded to be in cultivating possession of land of sq. no. 12 killa no.1 Min (4-0), which is in fact under the cultivating possession of Mithu Singh, Nazar Singh and the heirs of Major Singh since deceased. It is further the case of the plaintiff that defendant No.1 Faquir Chand is claiming that he is in cultivating possession of said land of sq. no.12 killa no.1 min (4-0) and accordingly, he filed an application for correction of khasra girdawari entries against the plaintiff and the present pro forma defendants which is pending. Since the plaintiff has refuted the claim of defendants No1. to 5 in the said application for correction of khasra girdawari entries by filing his written statement, therefore, defendants have threatened to block the passage through the lands of sq. no.13 killa nos. 15 (8-0) sq. no.12 killa nos. 11, 10, 1 and 2 to which the defendants are owners. It is further alleged that a path was duly sanctioned during the consolidation for approach to the said land of sq. no.13 killa no.15 and sq. no. 12 killa nos. 11, 10, 1, 2, 3 and 4 and said land belongs to one set of owners. The said passage touches the land of sq. no.13, killa no. 15 owned by defendant No.1 to 5 and the plaintiff has been using the said passage for approach to the lands of sq. no.12 killa nos. 3 and 4for the last 20 years. The defendants have no right to stop the plaintiff from so using the disputed path passing through the lands of sq. no.13, killa no. 15, sq. no. 12, killa no. 11, 10, 1 and 2, the plaintiff cannot enjoy the land of killa nos. 3 and 4 without the use of the disputed path. The defendants were requested several times to admit the claim of the plaintiffs but of no use, hence the present suit.
(3.) On put to notice, defendants No.1 to 5 appeared and filed joint written statement controverting the averments made in the plaint and raised preliminary objections on the ground that the plaintiff has no cause of action and locus standi to file the present suit and suit is not maintainable in the present form. On merits, they admitted that they are owners of land measuring 9 kanals 16 marlas, fully detailed in para no.1 of the plaint and the plaintiff is tenant under them but he is not paying the batai to them. It is further submitted that they (defendants) are in cultivating possession of the land of sq. no. 12 killa no. 1 min (4-0) and the plaintiff and other persons named above never remained in possession of the said land. they also admitted regarding pendency of application for correction of girdawari between the parties. They denied existence of any passage as alleged by the plaintiff in sq. no. 13 killa no. 15 and sq. no. 12 killa nos. 1, 2, 10 and 11 but also admitted existence of a passage in sq. no. 13, killa nos. 6 and 7 which has been left by the Government. The said passage is of 2 karams wide adjacent to the Railway line on the side of sq. no. 12 killa nos. 4, 7, 14 and the plaintiff has been using the passage for coming and going in the land mentioned in para no.1 of the plaint. There is no alleged path mentioned by the plaintiff in para No. 7 of the plaint. Denying other averments, defendants prayed for dismissal of the suit with costs. Defendants No. 6 to 8 were proceeded against ex parte vide orders dated 20.04.2006 and 29.04.2006 respectively.;