M.L. Singhal, J. - Sajjan Singh filed suit for permanent injunction restraining Mir Singh and others from raising any construction over passage marked ABCD and thus blocking it and hindering him and the other inhabitants of the village from using it as passage and also sought mandatory injunction directing the defendants to level the portion marked as EFGH in site plan, Exhibit P-1, attached to the plaint and demolish the foundations raised between point E to F and G to H.

2. It was alleged in the plaint that the passage CDGH joins the passage of new abadi at points GHAB. It was further alleged that the said passage is owned by the Gram Panchayat and the plaintiff is using the said passage for ingress and outgress and defendants wanted to block the passage by raising construction and they had dug the foundations at points E to F, and G to H. The passage shown by letters EFGH was a part of passage ABCD falling towards western side of the house of plaintiff and other residents of the village.

3. The defendants contested the suit of the plaintiff. It was denied that there is any passage as alleged by the plaintiff. The alleged passage has been shown in khasra No. 74. Khasra No. 74 is owned by the defendants. It was denied that the alleged passage is a thoroughfare. Defendants are raising the construction on Khasra No. 74 which belongs to them. It was denied that they are encroaching any part of the passage and are raising construction thereon.

4. On these pleadings of the parties, the following issues are framed by the learned trial Court :-

1. "Whether the plaintiff is entitled to the relief of injunction qua the Rasta-Share-Aam as alleged ? OPP

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

3. Whether the plaintiff has got no locus-standi to file the suit ? OPD

4. Whether the plaintiff has not come in the Court with clean hands and has suppressed the material facts ? OPD

5. Whether the suit of the plaintiff is false and frivolous ? OPD

6. Whether the defendants are entitled to special costs ? OPD

7. Relief.

5. Vide order dated January 29, 1997, Additional Civil Judge (Senior Division) Charkhi Dadri decreed the plaintiffs suit for permanent injunction restraining the defendants from raising any construction or encroaching upon passage EFGH forming pat of passage ABCD as shown in the site plan, Exhibit P-1. Defendants were further directed to level the said passage by demolishing the foundations dug at points EF and GH in view of his finding that the site EFGH shown in site plan, Exhibit P-1, is part of passage ABCD and that the site EFGH was not part of khasra No. 74 belonging to the defendants and as such, defendants have no right, title or interest in site EFGH so as to be entitled to the raising of construction or encroaching any portion of site EFGH.

6. Defendants went in appeal which was dismissed by Additional District Judge, Bhiwani vide order dated August 22, 1997. Still not satisfied, defendants have come up in further appeal to this Court.

7. I have heard learned counsel for the parties and have gone through the record.

8. Plaintiff-Sajjan Singh (PW-2) stated that the disputed passage is 15-16 feet wide. This passage has been in existence since the village was founded. On this passage, the door of his house opens. He stated that the disputed passage EFGH is situated on the western side of his house. The passage emanates from the northern side and after some distance, it turns towards eastern side going towards the village.

9. PW-1 Raj Pal stated that he prepared site plan. Exhibit P-1 at the spot. The site plan, Exhibit P-1, accords with the spot position. Sajjan Singh- plaintiff denied this suggestion that the so called passage is part of khasra No. 74. Tokh Ram and Jai Singh PWs stated that this passage EFGH has been in existence since the village was founded. Both of them denied that the site EFGH which the plaintiff says is passage was part of khasra No. 74. Bhoop Singh defendant (DW-1), on the