JUDGMENT :

NIDHI GUPTA, J.

Defendant No.1 is in second appeal against the concurrent judgments and decrees of the learned District Courts, whereby the suit filed by the plaintiffs/respondents No.1 and 2 herein, for permanent and mandatory injunction, has been decreed by both the District Courts.

2. Brief facts of the case are that the plaintiffs/respondents No. 1 and 2, had filed present Civil Suit seeking decree of permanent and mandatory injunction. The pleaded case of the plaintiffs is that a common road allows access to house of all the plaintiffs and defendants. This was the only road to access house of the plaintiffs. Plaintiffs have no alternate passage except this area. Previously, one Matadin son of Gordhan had filed Civil Suit No.444 of 1986 titled as Matadin son of Gordhan and others vs. Sube Singh and others for declaration and injunction against the present defendants in respect of the present suit land. In the said suit categoric finding of fact was given that the present plaintiffs/respondents are not owners of the suit land. However, in the said suit, plaintiffs were held entitled to use the passage for access and defendant/present appellant was directed to prove access to the plaintiffs. Consequentially, the said suit had been partly decreed vide judgment and decree dated 10.06.1995.

3. It was further averred that defendants No.1 and 2 being Sube Singh and Krishna had also filed a Civil Suit seeking injunction against defendant No.5/Prem, and others, which was dismissed on 16.05.2008 by learned Civil Judge (Junior Division), Rewari. It was further alleged in the present plaint that defendants No. 1 to 4 proposed to erect a wall opposite the door of the plaintiffs’ house which is not warranted. It was averred that plaintiffs had requested defendants to leave access open and not to erect the wall but to no avail. On 05.09.2011 defendants had finally refused the prayer of the plaintiffs. Hence, present suit was filed on 07.09.2011.

4. Upon appraisal of the pleadings and the evidence led by the parties, the Civil Judge (Junior Division), Rewari had decreed the suit of the plaintiffs vide judgment and decree dated 31.05.2014 as follows: -

“14. In view of the above discussion and issue-wise findings the suit of the plaintiffs is decreed restraining defendants from raising any construction over the suit land as was envisaged in judgment dated 10.06.1995 of Learned Sub- Judge in C.S. No. 444 of 1986 and to remove all construction undertaken after that date. No order as to costs. Decree sheet be prepared. File be consigned to record room after due compliance.”

5. The Civil Appeal filed by defendant No.1 was dismissed by the learned Additional District Judge, Rewari vide judgment and decree dated 17.08.2017. Hence, the present second appeal by defendant No.1.

6. It is inter alia submitted by learned counsel for the appellant that present suit land is the same land which was the subject matter of Civil Suit No. 444 of 1986 titled as Matadin and others vs. Sube Singh and others. The said suit had been filed by the predecessor in interest of the present plaintiffs for declaration and permanent injunction. Vide judgment dated 10.06.1995, the learned Civil Sub Judge, 1^st Class, Rewari had only partly decreed the suit and had recorded a categoric finding that present plaintiff/respondents are not owners of the suit property. The learned Sub Judge has further given a categoric finding that “The suit property belongs to the defendants.” It is submitted that therefore, ownership of the present appellant over the suit property, is undisputedly established on record. However, the previous Civil Suit No. 444 of 1986 was only partly decreed in favour of the appellant by the learned Sub Judge, 1^st Class, Rewari vide judgment and decree dated 10.06.1995 in the following terms: “15. In view of the above discussion, and the findings on the above issues, the suit of the plaintiffs for declaration that they are joint owners of the suit property i