The judgment emphasizes the importance of proper and mature appreciation of evidence in property disputes and the requirement for plaintiffs to prove their claims.

JUDGMENT :

Sureshwar Thakur, J.

The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiffs, suit for rendition, of, a decree of permanent prohibitory injunction, as well as, for declaration qua the suit khasra number(s), was, hence dismissed.

2. Briefly stated the facts of the case are that the plaintiffs are owners of the property and building detailed in the plaint. It is averred that the building of the plaintiffs is known as East View, Kasumpti, building on Khasra No.635. The defendants are owners in possession of the adjoining property comprised in Khata/Khatoni No.71/97, Khasra Nos. 610, 611, 616, 676, 628 at Kasumpti. The property of the plaintiffs and adjoining property of the defendants are abutted. But between the landed properties of the parties exist a common passage 4-5 feet wide passing through the land of Khasra No.676 of the defendants. The passage has been used and enjoyed by the plaintiff after purchase of the land. Earlier their predecessors had been using the passage since time immemorial, without obstruction or interference. Such usage by them was open, peaceful and hostile. In settlement of 1995, the common passage of Khasra No.767 was recorded as Rasta Share Aam. Defendants have no right to interfere or obstruct in usage of path by the plaintiffs. But in September, 1999, they started interfering in peaceful user of the path which plaintiffs had been using for purpose of repair and maintenance of the retaining wall of 10 feet high and 50 feet long abutting the common passage.

3. The defendants contested the suit and filed separate written statements. In their written statement, the defendants controverted the case of the plaintiffs by denying their allegations. Existence of common passage on land of defendants Khasra No.676 is denied. It is also denied that the plaintiffs are owners of the adjoining land to the extent of 1699.55 sq. meters. The plaintiff, in connivance with revenue officials, got more land recorded in their names in revenue record than their actual entitlement. The plaintiffs had purchased land from Shiv Raj Devi, who was owner of 2-2 bighas only. So present settlement record showing more possession of the plaintiffs is wrong and illegal. However, defendants admits themselves to be owners of the land in Khata/Khauni No.71/95 min and 71/97. But denied the existence of path upon khasra No.676. It is averred that neither any path is being used by the plaintiff through land of the defendants since times immemorial nor they were using so called common passage peacefully. Settlement was conducted in violation of the mandatory provisions of law, which was challenged by way of civil suit by the defendants. Gair Mumkn Rasta as wrongly incorporated in the revenue record. It is averred that the plaintiffs had not left any set back to repair their retaining wall and cannot claim right over the adjoining land of the defendants.

4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

1. Whether the plaintiffs have the right to use common passage through Khasra No.676 as alleged if so its effect? OPP.

2. Whether the plaintiffs are entitled to relief of permanent prohibitory injunction, as prayed for? OPP.

3. Whether the suit is not maintainable in the present form? OPD.

4. Whether the suit has not been properly verified? OPD.

5. Whether the suit is not property valued for the purpose of court fee and jurisdiction? OPD.

6. Whether the plaintiffs have not come to the court with clean hands? OPD.

7. Whether the plaintiffs have suppressed the material facts from the court? OPD.

8. Whether the plaintiffs have no cause of action to file the present suit? OPD.

9. Relief.

5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the plaintiffs/appellants here