The passage in dispute does not constitute a private right for the plaintiff but is a public way, and the burden of proof lies on the claimant to establish exclusive rights over it.

JUDGMENT :

VIRINDER AGGARWAL , J.

1. Appellant-defendant has filed this appeal against the concurrent judgment and decrees passed by the Courts below in a suit for permanent injunction filed by respondent-plaintiff Jugal Kishor claiming permanent injunction restraining defendants from preventing plaintiff from raising construction of wall from Point I to F as shown in the site plan and from interfering in the peaceful possession of the plaintiff over agricultural land fully detailed and described in the head note of the plaint on the allegations that plaintiff is in exclusive possession over the suit land and few years ago he has raised boundary wall around the land and there is a well bearing No. 27. A Parta of well was left during consolidation for enjoyment of the well. Plaintiff has installed electric tubewell. During consolidation of holdings a Rasta of 3 Karm was left along with Northern Killa line of Killa No. 9/2 and 9/1 and Killa No. 8 of Rect. No. 3 for the plaintiff and his family members. Rasta reached upto the well and thereafter there is dead end. The predecessors of the plaintiff approached for Rasta from Western side to reach the well and Additional D.C.-III Rohtak has provided 1 Karam Rasta to father of plaintiff from Western side. Rasta is not a public way and is only meant for co-sharers of the well. Defendants are not co-sharers in the well and have no right, title or interest in the agricultural land fully surrounded by the boundary wall. They have no right to use Parta of the well No. 27 nor any Rasta is left for defendants for their egress or ingress to their houses. The houses of the defendants are having separate Rastas. During rainy season of 2008, some portion of the boundary wall between Point I to F of Eastern wall fell down and now defendants are putting hindrance in reconstruction of the fallen portion of the wall claiming the Rasta to be a public way. On notice defendant No. 1 contested the suit on the grounds that site plan submitted by the plaintiff is not in accordance with existing position at the spot. It was denied that any boundary wall was raised or that plaintiff and his family members are owners of the Rasta. Defendants alleged that number of persons purchased their plots out of Khasra numbers as detailed in the head note of the plaint and Rasta is used by all to reach their respective houses and plaintiff has filed the present suit with the sole intention to block public passage. Defendants have purchased property out of Khasra number in the shape of plots and passage has been kept at the place and there is a public passage. It was denied that boundary wall from Point I to F in the site plan fell down or that defendants are threatening to obstruct plaintiff from raising construction but it is alleged that plaintiff has no right to block the Rasta which is meant for public at large. Replication was filed reiterating the contents of the plaint and denying the averments of the written statements.

2. From the pleadings of the parties, the following issues were framed :-

i) Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP

ii) Whether the suit of the plaintiff is not maintainable in the present form? OPD

iii) Whether the plaintiff has suppressed the material facts from the court and has not come with clean hands before the court? OPD

iv) Whether the plaintiff has no locus standi and no cause of action to file the present suit? OPD

v) Whether the plaintiff is estopped by his own act and conduct to file the present suit? OPD

vi) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

vii) Relief.”

3. In order to peruse t