A suit filed by Panchas and other persons claiming their right to use a disputed passage which was being used for last 100 years by the plaintiff and other persons is maintainable even though no notice is issued under Order 1 Rule 8 CPC.

1. - This second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 13.8.2009 passed by the Additional District Judge (Fast Track) Bandikui, Head Quarter at Dausa District Dausa in Civil Appeal no. 8/2007 (32/2004) whereby the judgment and decree dated 5.8.2004 passed by the Civil Judge (Senior Division), Dausa in Civil Suit No.91/2003 has been confirmed.

2. Briefly stated the facts for the disposal of the present second appeal are that the appellant was defendant in the suit filed by the respondents. In the suit a prayer was made by the plaintiff to grant permanent injunction and to restrain the defendant from creating hindrance in the use of the way which is passing through khasra nos. 274, 308 and 310 situated in village Bhankari, Tehsil and District Dausa. The learned trial court proceeded with the trial and on 11.12.2003 drew exparte proceedings against defendant nos. 2, 4 and 5 and also closed the right to file written statement in relation to defendant nos.1 and 3 in the suit as more than 90 days time was taken by the defendant in filing the written statement. On 7.1.2004, exparte proceedings were ordered against defendant nos. 1 and 3 as they did not appear. The matter thereafter was fixed for recording evidence of the plaintiff. The plaintiff examined six witnesses and tendered three documents in evidence. After hearing the plaintiff, the trial court decreed the suit vide its judgment and decree dated 5.8.2004 and issued permanent injunction in relation to the disputed passage to the effect that in the map the way shown shall be used by the plaintiffs and other villagers and further the defendant in the suit shall not create any hindrance in the peaceful use of the passage. The appellant having felt aggrieved preferred regular appeal which was decided by the Additional District Judge (Fast Track), Bandikui Head-quarter Dausa on 13.8.2009. The appellate court dismissed the appeal and confirmed the judgment and decree passed by the trial court. Hence, the present second appeal has been filed.

3. The main contention of the learned counsel for the appellant is that the suit was one under Order 1 Rule 8 CPC and the court has not followed the prescribed procedure, therefore, the judgment and decree passed by the courts below are liable to be set aside. It is also the contention of the learned counsel that the trial court has not afforded proper opportunity as his lawyer did not inform him about the proceedings of the court, therefore, the appellant could not file written statement in time and could not adduce the evidence. In support of his submissions, learned counsel for the appellant has placed reliance on the decisions in the case of Kusasan Samal and others v. Chandramani Pradhan (dead), AIR 2003 Orissa 157 ; The Assistant Commissioner, Hindu Religious and Charitable Endowment, Salem and others etc. v. Nattamai K.S. Ellappa Mudaliar and others, AIR 1987 Madras 187 ; Radhamohan Malia and another v. Basudeb Khuntia and others, AIR 1981 Orissa 16 ; Sri Ram Krishna Mission and another v. Paramanand and others, AIR 1977 Allahabad 421 and Smt. Munni Devi and others v. Satgur Dayal Tandon and others, AIR 1973 Allahabad 281 .

4. I have considered the submissions made before me.It is to be seen that Panchas of village and other persons filed the suit for permanent injunction for the reason that the defendant-appellant was making hindrance in the use of the way which passes through the land in khasra nos. 274, 308 and 310, village Bhankari Tehsil & District Dausa. The appellant's contention is that the land belongs to him and there was no right of way available to the respondent-plaintiffs and there was no compliance of the provisions of Order 1 Rule 8 CPC. A perusal of the impugned judgment and decree passed by the courts below reveals that the learned appellate court found in the facts and circumstances of the case the plaintiff and other villagers had the