JUDGMENT

P. Venkatarama Reddi, J.-Leave granted.

2. The appellants were the defendants in the two suits filed by Madan Gopal, who is no more and is now represented by his legal representatives who are respondents herein. The first suit was filed to restrain the first defendant (appellant herein) for making any construction on the spot marked CB in the sketch annexed to the plaint or in any other part of the land and also to restore the original position of the land at point CB and to restore the entry gate to the suit property. The second suit was filed seeking permanent injunction restraining the defendants from changing the nature of the suit land or raising any construction or transferring the same to the detriment of the plaintiff. The plaintiff also prayed for a permanent injunction restraining defendants No. 1 and 5 from installing and working the sawing machine at point A as shown in the sketch plan.

3. The original plaintiff s father and defendants fathers were brothers being the sons of one Kanshi Ram. The plaintiffs claimed that Khasra Nos. 119 & 120 were Abadideh inam land belonging to the said common ancestor and the defendants have no exclusive rights over the said land. In other words, the plaintiff claimed to be co-owner along with the defendants 1 to 4. The plaintiff further claimed that there was an entrance and passage at point CB (shown in the plan attached to plaint) leading to K.No. 119 and it has been annexed by the defendant No. 1 who was proposing to raised shops thereon. The 5th defendant is a tenant of defendant No. 1 and he had installed a saw machine on the portion of the land let out to him by 1st defendant.

4. Both the suits were tried together and they were dismissed. On appeal filed by the plaintiffs, the first appellate Court held that the suit property is the joint and undivided property of the plaintiff and defendants 1 to 4 and in the absence of proof of ouster, the defendants cannot claim to be in exclusive possession and raise constructions thereon. It was further held that a passage existed at point CB and the first defendant had no legal right to block or raise any construction over the passage (leading to the land in K.No. 119). It was also held that the Saw Machine was installed by the 5th defendant without the consent of the co-sharers. The first appellate Court therefore restrained construction at point marked CB or any other part of the suit land and further directed defendant No. 1 to restore the entrance gate and passage to the suit land at point CB . A mandatory injunction was also granted directing defendant No. 5 to remove the structure raised and the Saw Machine installed therein.

5. On second appeal, the High Court confirmed the permanent injunction granted by the appellate Court restraining from raising constructions over suit property. The mandatory injunction directing the first defendant to restore the entrance gate and passage at point CB was upheld. However, the injunction directing the removal of structure and the saw machine installed by the 5th defendant was set aside. The second appeal was thus allowed partly.

6. We notice that the High Court did not frame substantial question of law arising in the second appeal. However, the High Court did consider the matter elaborately. We also notice that the High Court did not consider the question whether the suit property, not to speak of the passage at CB , is the joint undivided property of the plaintiff and defendants 1 to 4, as held by the first appellate Court or it is the exclusive property of the appellants herein. Both before the trial Court and the first appellate Court, there was a debate and finding on the question whether the appellants-defendants could get the exclusive right of ownership by virtue of Section 11 of J&K Common Lands (Regulation) Act, 1956.

7. It is the contention of the appellants that the land in question being abadi land, held by them at the commencement of the Act, had vested in them.