The ownership of a plot is not directly and substantially in issue in a suit where the central controversy relates to a public thoroughfare, the plaintiffs have not sought any relief with regard to the plot, the issue of their ownership is not necessary for the decision of the suit, and the plaintiffs have not led their entire evidence on the issue of ownership because they were not conscious that it was being adjudicated.

( 1 ) -SUIT No. 115 of 1964 was instituted by Nand Lal and and another against Sultan Singh and others in the Court of Sub-Judge, Delhi, for permanent injunction, seeking restraint of the defendants for constructing any obstruction in the village thorough fare efgh shown in red colour in the sketch plan attached with the plaint, and requiring the defendants to remove the construction, if already put in there. The plaintiffs had claimed that they were in proprietory possession of the southern side plot/gher of this thoroughfare shown as abcd and in the said plan, forming part of khasra No. 1503. The village thoroughfare which constituted khasra No. 1500, was said to be the only passage connecting the plaintiffs said plot/gher with the village abadi. The defendants were shown to have their plots and gitwars on the northern side of the thoroughfare bearing khasra Nos. 1498 and 1499. The threatened construction by the defendants was thus it was stated likely to not only obstruct the only passage to their plot from village abadi, but would also result in a portion of the thoroughfare being wrongfully and illegally encroached by the defendants.

( 2 ) THE said khasra number were of land long before the consolidation in the village which took place in about 1952. it appears that the Lal Dora of the village abadi was extended so as to include part of the shamlat land also It was over a part of that "shamlat land bearing khasra No. 1503 that the plaintiffs claimed that they were in proprietory possession. It measured 19 biswas.

( 3 ) THE defendants denied that any thoroughfare as claimed by the plaintiffs existed at the spot, or that the same constituted as their only passage to their plot/gher. in fact, the plaintiffs proprietory possession over the plot/ gher too was denied,

( 4 ) THE trial of the suit proceeded, and one of the issues framed was : "whether the plaintiffs had locus standi to file the suit ?" The other issue concerned the land in suit being a thoroughfare. This suit was decreed by the trial court on 21-3-1967 after holding that the disputed land was in fact a thoroughfare and any obstruction therein apart from being a public path, was likely to obstruct passage to the plaintiffs southern side plot/gher, shown as abcd in the plan. In appeal, however, the learned Additional District Judge reversed the decree, and after extensively going through the revenue and consolidation papers, the report of the Commissioner who had been appointed to effect measurements at the spot, and the note of the Sub-Judge who was earlier seized of the suit, made after the spot inspection, held that it was not shown that the land in dispute constituted as a public thoroughfare. It was also observed that the plaintiffs had not been able to establish that they were in possession of southern side plot abcd in the said plan from the evidence placed in record. In para 9 of the judgment it was taken note that certain mutations had not been produced which could show that the owners of khasra No. 1503 were deprived of piece of land. Earlier in para 6 it was observed that another mutation No. 853 showed that the land comprised in khasra Nos. 18/2 and 89/7/1, totalling 7 bighas 16 biswas, belonging to the plaintiffs was mutated in favour of shamlat deh in exchange of some land given to the plaintiffs from abadi deh. However, the area of the land so given to the plaintiffs, was not mentioned, nor any other particulars of the said land had been given therein from which it could be vouched with some element of certainty that the land given to the plaintiffs was the same which was claimed to be part of khasra No. 1503 in para 1 of the plaint.

( 5 ) THE plaintiffs second appeal to the dismissal of the suit in first appeal was rejected in limine by the High Court on 18-12-1969, with the observation that findings were essentially on question of fact based on evidence.

( 6 ) IT was thereafter that the said plaintiffs brought anot