PARAMJEET SINGH, J. - (1.) ALLOWED . In view of grounds mentioned in application, delay of 241 days in re -filing the present appeal is condoned. The suit out of which this regular second appeal arises was for mandatory and permanent injunction whereby respondents - plaintiffs had prayed for mandatory injunction directing the defendant to restore 10 ft. wide passage as described in the head - note of the plaint and also prayed for permanent injunction restraining the defendant from alienating, transferring, mortgaging, cultivating, sowing or interfering in any manner in the peaceful use of the said passage by them.
(2.) THE Court of first instance decreed the suit vide judgment and decree dated 01.02.2007. Feeling aggrieved, the defendant preferred an appeal which was dismissed by lower Appellate Court vide judgment and decree dated 23.08.2010. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this regular second appeal are that plaintiffs -Ajmer Singh and others filed suit for mandatory and permanent injunction alleging that the plaintiffs had purchased 3 bighas 2 1/2 biswas of land out of land comprised in khewat no.25, khatoni no.62, khasra no.307 situated at village Ahru Kalan, Sub Tehsil Dudhan, Tehsil and District Patiala, from defendant -Narinder Kumar vide registered sale deed no.1414 dated 28.01.1999 for a sale consideration of Rs.1,42,000/ -. The passage measuring 10 ft. wide x 78 karam in length was provided to the plaintiffs for egress and ingress from/to the land comprised in khasra no.307. In sale deed also, 10ft. wide x 78 karam in length passage has also been given to the plaintiffs from the pucca road that is comprised in khasra no.318. The said passage passes through khasra nos.305, 306 and 307, as marked with letters ABCD in rough site plan. On 10.10.2000, the defendant cultivated the said passage and declared that he would not allow the plaintiffs to use the said passage for egress and ingress which necessitated the plaintiffs to file the suit.
(3.) UPON notice, the defendant put in appearance and filed written statement by taking various preliminary objections. On merits, it is averred that the defendant never executed any sale deed in favour of the plaintiffs. The land comprised in khasra nos.78(0 - 2), 301 (7 -13), 304 (6 -5), 305(2 -13), 306 (6 -5), 307 (6 -5), 309 (6 -5), 310(7 -12), 312 (3 -2), 313 (3 -13) is a joint property of the defendant along with Satish Kumar, Chaman Lal, Promila Devi and Shanti Devi. No passage was ever provided to the plaintiffs. The entire land of khewat no.25 is agricultural land and crops are sown therein. There is no passage in existence at the spot in khasra no.307. In order to controvert the averments made in written statement, the plaintiffs filed replication reiterating the averments made in plaint and denying the averments made in written statement. On pleadings of parties, the Court of first instance framed following issues: "1. Whether the defendant sold the property measuring 3 bighas 2 1/2 biswas comprising khasra no.307 to the plaintiffs?OPP 2. Whether the defendant provided 10 ft. wide passage from pucca road comprising khasra no.318 as detailed in the head note of the plaint in the alleged sale deed?OPP 3. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP 4. Whether the plaintiffs are entitled to permanent injunction as prayed for?OPP 5. Whether the suit is bad for non joinder of necessary parties?OPD 6. Whether the civil court has no jurisdiction to try the present suit?OPD 7. Whether the suit is not maintainable in the present form?OPD 8. Relief." ;