The main legal point established in the judgment is the applicability of the provisions of Order 2 Rule 2 and Order 9 Rule 9 CPC to determine the maintainability of the subsequent suit.

JUDGMENT

Tarlok Singh Chauhan, J —The plaintiffs are appellants, who aggrieved by the judgment and decree passed by the learned trial Court, whereby the suit for grant of declaration and consequential relief for possession, prohibitory injunction, mandatory injunction, recovery of damages/mesne profits etc. has been dismissed, have filed the instant appeal under Section 96 of the Code of Civil Procedure, 1908 read with Section 20 of the Himachal Pradesh Courts Act, 1976.

2. The parties to the lis are hereinafter referred in the same manner, in which they were referred to by the learned Court below.

3. It is not in dispute that the pleadings of the parties have been correctly enumerated in the impugned judgment and are, therefore, reproduced as such.

4. It was averred in the plaint that plaintiffs are coowners of the property known as Strawberry Hill, which is over the land entered at Khewat No. 13, Khatauni No. 14, Khasra Nos. 112/66/10, measuring 4 bighas 13 biswas, situate at Chotta Shimla, Tehsil and District, Shimla, H.P. (hereinafter referred to as the suit property) . The above suit property has been in exclusive use and occupation of the plaintiffs. In fact, plaintiffs previously owned 16 bighas 2 biswas of land, but, lateron sold the remaining area to the various persons including H.P. Housing Board, Shimla.

The ancestors of the plaintiffs in order to access to the main house, Strawberry Hill from the main Shimla, Kasumpti Road, had a private approach road and to secure the privacy and avoid unnecessary intrusion, had provided a gate embedded into two cemented pillars within their own property at the bifurcation of the main P.W.D., Chotta Shimla, Kasumpati Road, which is shown by points ''A'' and ''B'' in the site plan annexed with the plaint. The aforementioned private approach road has been in exclusive use of the plaintiffs and their predecessor-in-interest for the last 70 years, and the main gate has always been kept by the plaintiffs and their predecessor-in-interest under the lock and key and control. The approach road is shown in the site plan as points, C, D, E & F. The predecessor-in-interest of the plaintiffs have also affixed iron mesh railing/fencing on the either side of the road. Since, the plaintiffs were desirous of developing their property by carving out therefrom certain plots of land for which purpose an application was made by the plaintiff No. 1 to H.P. Town & Country Planning Organisation for seeking sub-division of the plots. Lateron the Director Town & Country Planning on 31.07.1982 accorded sanction to the plaintiffs for sub-division of a part of their property.

Even the private approach road, as well as main road depicted in the said plan.

5. That out of the plots of the land approved by the Town & Country Planning, Plot No. 2 was sold to Dr. Nath and another plot shown as Plot No. 3 was sold to Ashok Kapoor of Delhi. Both these plots have not yet been built upon or constructed upon by them and there is no access or right of way from the private road of the plaintiffs.

6. Lateron defendant Nos. 1 & 2 approached the plaintiffs for purchase of the plot lying in between the plot No. 1 and 3 and in the revenue record, this plot was shown to be 0-4 biswas being part of Khasra No. 112/66/10/12. This plot was transferred in favour of defendant Nos. 1 & 2 by way of sale deed dated 22.02.1984. This plot in fact is located alongside of Municipal Corporation and P.W.D. road leading from Chhota Shimla to Kasumpti and this plot is about 30 feet below the level of the private approach road of the plaintiffs leading to main house Strawberry Hill. Thus, no right of access was given to defendant Nos. 1 & 2 from the private approach road belonging to the plaintiffs. Lateron plaintiff No. 1 on 20th October, 1984 sent an information to the Executive Engineer, Municipal Corporation, Shimla clarifying that plaintiff No. 1 had not allowed any permission to the defendants to use her private road leading to the main h