JAGAT NARAYAN, J—This is an appeal by the defendants against an order of the appellate court passed under Order 41 Rule 23 C.P.C. remanding. The suit for disposal on merits. The suit was dismissed by the trial court on a preliminary point

2. Ramji Lal is a tenant of Khasra No. 10 situated in village Sanwlod. Chandgi Ram defendant No. 1 is a tenant of Khasra No. 25 and Sukha and Baldeo defendants Nos. 2 and 3 are tenants of Khasra No. 12. The plaintiff claims that he has a right of access to his field through Khasra No. 25 and along the mendh of Khasra No. 12. He has brought the present suit for a declaration of his right of passage and for a permanent injunction restraining the defendants from interfering with it. The suit was contested by the defendants inter alia on the ground that the plaintiff and they being tenants of a common landlord namely the State, the plaintiff could not acquire any right of easement over their tenancy lands for the beneficial enjoyment of his land in view of the provisions of Sec. 12 Elements Act (hereinafter referred to as the Act). This contention was accepted by the trial court which dismissed the suit on this preliminary ground. On appeal the learned

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