1. This second appeal is arising out of the judgment and decree dated 31.10.2007 passed by the learned Additional District Judge No.1, Bikaner in Civil Appeal (Decree) No.49/2007 “Manoj Kumar S/o Sohan Lal & Smt. Bhikhi Devi W/o Sohan Lal Vs. Roshan Lal S/o Jeevraj Sethia & Anr.” who allowed the appeal filed by the present respondents-defendants and set aside the judgment and decree dated 19.11.2003 passed by the learned Additional Civil Judge (Senior Division) No.4, Bikaner in Civil Case No.93/2001 “Roshan Lal S/o Jeevraj Sethia Vs. Manoj Kumar S/o Sohan Lal Pugalia and Smt. Bhikhi Devi W/o Sohan Lal Pugalia & Anr.” by which, the learned Additional Civil Judge (Senior Division) had decreed the suit filed by the appellant-plaintiff Roshan Lal seeking perpetual and mandatory injunction in relation to the disputed piece of land, which is a common chowk between the residential houses of the parties, situated at Bhinasar, Sethia Chowk, Bikaner.

2. The present second appeal has been filed by the appellant, who was the plaintiff before the learned Trial Court, against the reversal of the judgment of the learned Trial Court, by the learned First Appellate Court.

3. The learned counsels Mr. M.S. Purohit and Mr. B.S. Bhalasria appearing for the appellant-plaintiff Roshan Lal submitted that the defendants – Manoj Kumar S/o Sohan Lal Pugalia had purchased the property in question with the condition stipulated in the sale deed in favour of their predecessor-in-title that the disputed portion (common chowk) of the property purchased by them would be kept open for common use for marriages and bereavements and meetings etc. even if the plaintiff Roshan Lal purchased the half portion of the plot of land in question from the different predecessor-in-title, the defendants were bound by that condition stipulated in the sale deed and, therefore, they cannot be allowed to use the disputed portion of the land, which is a common open chowk, for their private purposes and the same was meant to be used for common use between the parties. The learned counsel Mr. M.S. Purohit further submitted that since no written statement was filed by the defendants and no evidence was led by them, therefore, the learned Trial Court was justified in decreeing the suit filed by the plaintiff Roshan Lal which has been wrongly reversed by the learned First Appellate Court on the anvil of Section 11 of the Transfer of Property Act, 1882, therefore, a substantial question of law arises for consideration by this Court in the present second appeal filed by the plaintiff Roshan Lal.

4. On the other hand, the learned counsel Mr. Sanjay Nahar appearing for the respondents-defendants-Manoj Kumar S/o Sohan Lal Pugalia submitted that Section 11 of the Transfer of Property Act, 1882 was clearly applicable in the present case and since the defendants had purchased the suit property from the predecessor-in-title, different from the predecessors through whom, the plaintiff had purchased a portion of the suit property, therefore, the restriction imposed about common use of the open space could not be invoked by the present plaintiff and applied on the defendants. He also submitted that the plaintiff had a passage and access to the road from the other side of the plot and not through the common space, as claimed by the plaintiff and, therefore, the defendants were free to use the questioned piece of land of the chowk which was purchased by them free from encumbrances and that condition, as sought to be invoked by the plaintiff is not applicable to the defendants as barred by Section 11 of the Transfer of Property Act, 1882. In this view of the matter, the learned counsel Mr. Sanjay Nahar submitted that the learned First Appellate Court has rightly reversed the judgment and decree of the learned Trial Court and has rightly dismissed by the suit of the plaintiff on the anvil of Section 11 of the Transfer of Property Act, 1882. The learned counsel Mr. Sanjay Nahar relied upon