- (1.) THIS regular second appeal is directed against the judgment and decree dated 25.03.2004 passed by learned Civil Judge (Jr. Divn.), Faridabad whereby suit for permanent injunction filed by appellantsplaintiffs has been dismissed and against the judgment and decree dated 22.09.2007 passed by learned Additional District Judge (Ad hoc), Fast Track whereby appeal preferred by the appellants has also been dismissed.
(2.) FOR convenience sake, reference to parties is being made as per their status in the suit.
(3.) 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 second appeal are to the effect that plaintiffs filed a suit for permanent injunction restraining defendant from causing any hindrance or raising any construction over passage shown in green colour in site plan which passes through the houses owned and possessed by the plaintiffs, situated in village Mewla Maharajpur, District Faridabad, fully detailed and described in site plan attached with the plaint. As per averments in the plaint, plaintiff no.1 had purchased a plot from defendant by way of registered sale deed dated 12.07.1972. Plaintiff no.2 got lease deed for a period of 99 years from defendant in his name on 21.06.1973 and sale deed was executed in the name of his sons -Shiv Charan and Mam Chand by defendant on 21.06.1973. The houses of other plaintiffs are ancestral property. A 12 feet wide passage shown in green colour in site plan from house of Khacheru -plaintiff no.3 leading to pucca road towards well is in existence since times immemorial. The passage is being used by the plaintiffs without any hindrance. At the time of selling plots to plaintiffs no.1 and 2, defendant admitted the passage. Water taps of Municipal Corporation, Faridabad are installed in the passage shown in dotted line in site plan. In the year 1975, a settlement took place between the parties that 12 feet wide passage will be rasta sare aam (public passage) and nobody will construct over it. The settlement was signed by the plaintiffs and defendant necessity for which had arisen out of construction started by Nanuwa. As per settlement dated 23.04.1975, he had released the passage and stated that he had no concern whatsoever with 12 feet wide passage. Defendant wants to grab passage by raising construction without any right, title or interest. Plaintiffs asked defendant many a times not to cause any hindrance, but to no avail. Hence, suit was filed. Upon notice, the defendant filed written statement taking various preliminary objections. In preliminary objections, it was also stated that the plaintiffs have raised the claim which is inconsistent with their title deeds. Plaintiff no.2 along with Bhuley had taken a lease of plot measuring 250 square yards out of share of defendant in killa no.219 and a passage in killa no.219 towards north of the said plot was provided to them. Similarly, defendant had sold another plot out of his share in khasra no.219 to plaintiff no.1 vide sale deed dated 12.07.1972 in which passage was duly provided on the east of plot so purchased. The said passage forms part of khasra no.219. Plaintiffs have allegedly encroached upon the passage provided to them and wanted to claim passage out of adjoining land of defendant which bears khasra no.218. On merits, it was pleaded that site plan filed by the plaintiffs is not in accordance with law. It was not disputed that plaintiff no.1 had purchased an area measuring 2731/2 square yards from the share of defendant in khasra no.219 in which a common passage was provided on eastern corner of the said plot. The alleged lease deeds in favour of plaintiff no.2 were executed with regard to specific plots out of khasra no.219 whereunder passage was provided towards north of the plot sold by defendant which is reflected in sale deed and lease deed. No passage as alleged by plaintiffs was ever admitted. Towards eastern side of khasra no.219, khasra no.218 is situated. The plaintiffs have no concern with khasra no.218. Other averments in plaint were denied. On the basis of pleadings of parties, the Court of first instance framed following issues: "1. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for?OPP 2. Whether this suit is not maintainable as alleged?OPD 3. Whether the suit is bad for mis -joinder of parties and cause of action, as alleged?OPD 4. Whether the suit is bad on account of nonjoinder of necessary parties, as alleged?OPD 5. Whether the plaintiff has no locus standi to file the present suit?OPD 6. Relief.";