( 1 ) AWAITING disposal is an application under Order XXXIX Rules 1 and 2 CPC by the plaintiffs, namely, Shri Ashok Chopra and Shri Syed Wasi ul Hasan in a suit for permanent and mandatory injunction seeking a restraint order against the defendants in terms of prayer made therein.

( 2 ) A plot of land bearing No. 7, Lancer Road, Banarasi Dass Estate, Timrpur, Delhi, owned by one Smt. Uma Sethi, was purchased by Smt. Prakashwati, Shri Khushal Chand and Smt. Panna Devi by means of a sale deed dated 8. 5. 1958. A two and half storeyed building was constructed by them jointly on the said plot of land. At a later point of time, after the death of Panna Devi, her sons, namely, Shri Dharmendra Kumar, Shri Virendra Kumar and Shri Surender Kumar in the year 1974 filed a suit bearing No. 446/74 for partition of the property. After passing of a preliminary decree, on 8th of January, 1975, an application being IA. 1689/75 setting out a mutually agreed scheme of partition was filed by the parties to the suit and a final decree for partition was, accordingly, passed by judgment dated 8. 1. 1975. By virtue of the said scheme of partition, the property was divided into four portions assigning new numbers as 7/1,7/2,7/3 and 7/4. Front portions of the property were numbered as 7/1 and 7/4 and rear portions as 7/2 and 7/3. A ten feet wide passage on eastern and western side of the building was earmarked for common use. The portions numbered as 7/1 (front) and 7/2 (rear) fell on western side while 7/4 (front) and 7/3 (rear) on eastern side. The common passage on western side was used by the occupants of portions 7/1 and 7/2 while the one on the eastern side was used by the occupants of portions 7/4 and 7/3.

( 3 ) BY a sale deed dated 18. 1. 1995. the owner of first floor of property No. 7/3 sold the same to plaintiff No. 2, Shri Syed ul Hasan and by another sale deed dated 23. 11. 1995 Shri Surender Kumar, owner of the second floor of property No. 7/3 sold the same to Shri Ashok Chopra, plaintiff No. 1. In both the sale deeds, it was clearly mentioned that the ten feet wide passage on the eastern side was for common use of the occupants.

( 4 ) THE ground floor portion of the property bearing No. 7/4 had earlier been purchased by Shri Jitender Kumar Aggarwal (defendant No. 2) vide sale deed dated 21. 11. 1988 and the first floor by Shri Rohit Kumar aggarwal (defendant No. 1) vide sale deed dated 17. 2. 1989. Both the defendants happen to be real brothers. In the sale deeds executed in favour of respective defendants, there is clear recital of a 10 feet wide passage for common use by the occupants of the building. There is also a mention of the Judgment and decree of this Court passed in S. No. 446/1974.

( 5 ) ACCORDING to the plaintiffs, sometime in the year 1992-93, the defendants made some construction in the common passage and also started raising a wall in the middle of the common passage to deprive the occupants of the rear portion, access to their portions from front gate. A suit was filed in the court of Sub-Judge by Shri Rameshwar Dass Gupta, erstwhile owner of the first floor of property No. 7/3. In the said suit, it is stated, the defendants undertook to demolish the wall in the common passage raised by them.

( 6 ) AGAIN on 9th of February, 1995, the defendants with a view to deprive the plaintiffs and other residents of rear portions of the building of user of common passage, put locks on the front entrance gate. They also started parking their cars in a manner as to make the user of common passage difficult. They, with the same view in mind have also allegedly extended the landing of their stairs into the common passage. Shri Sukhbir Singh jain, one of the occupants of the ground floor portion of 7/3, filed a suit bearing No. 1230/97 for permanent and mandatory injunction against the defendants and on an application being made by the said Shri Sukhbir Singh jain in that suit, an order dated 30. 5. 1997 was passed restra