This second appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against judgment and decree dated 18.02.1982, passed by the then learned Civil Judge, Roorkee, in Civil Appeal No. 47 of 1980, whereby said court has dismissed the appeal, and affirmed the judgment and decree dated 31.03.1980, passed in original Suit No. 198 of 1972, passed by the trial court (Munsif, Roorkee). Said court had decreed the suit of the plaintiff Shanti Devi.

2) Heard learned counsel for the parties, and perused the lower court record.

3) Brief facts of the case are that plaintiff Shanti Devi instituted Suit No. 198 of 1972, stating that she owns the house shown by letters A, B, C, and D (in the plaint map) situated in Plot No. 91 of Village Hirna Kheri of Pargana Jwalapur. She pleaded that in the north of her plot, plot No.91/1 is under cultivation of the defendants. While plot No. 90/3 is Abadi land. In the north of plot No. 90/3 there is Abadi land No. 89/1 of the defendants. Adjacent to said plot (89/1) towards northeast there was a Rasta land (GAUHAR), which is numbered as Plot No. 89/2 in the records. Said Rasta land has been shown by letters F, G, H, K, T, O, P in the plaint map. It is further pleaded by the plaintiff that she uses said Rasta land to go and cultivate the plot No. 88/2, which is shown by letters K, L, S and T in the plaint map. It is alleged by the plaintiff that the defendants have started raising construction over the plot No. 89/2 i.e. Rasta land with intention to obstruct the pathway of the plaintiff. By amending the plaint, it has been stated that the defendants have encroached upon Plot No. 88/2 after obstructing over the pathway (i.e. Plot No. 89/2). The plaintiff has prayed in the plaint that perpetual prohibitory injunction be issued against the defendants, not to obstruct the Rasta land (Plot No. 89/2) in suit. It has been further prayed by the plaintiff that the construction if any, made by the defendants be also directed to be removed from the adjoining Plot No. 88/2.

4) The defendants contested the suit and denied the claim of the plaintiff. It is pleaded by the defendants that plaintiff had no concern whatsoever either with plot No. 88/2 or with that of 89/2. The defendants denied that there is any Rasta land on plot No. 89/2. It is also stated by the defendants that the plaintiff was never in possession of Plot No. 88/2 as pleaded by her. In the additional written statement, it has been stated that the suit is bad for non-joinder of Gaon Sabha. It is also stated that Gauhar (Rasta land) is situated in Plot No. 54/1 and not in Plot No. 89/2. It is also pleaded that the suit is bad for non-compliance of Order 1 Rule 8 of Code of Civil Procedure, 1908. The legal plea has also been taken that the suit is barred by Section 41 of the Specific Relief Act, 1963.

5) On the pleadings of the parties, following issues were framed by the trial court, which were pressed on behalf of the parties:-

i) Whether the suit is under valued and court fee paid is insufficient?

ii) Whether the plaintiff has acquired right to easement over the land shown by letters C, E, F, G, H and O, T, K, I, J, G, F, Q P as shown in the plaint map?

iii) Whether the disputed Rasta land is part of Plot No. 89/2 as alleged by the plaintiff?

iv) Whether the defendants have encroached upon and occupied the Gauhar (Rasta land) situated in Plot No. 89/2?

v) Whether Gauhar (Rasta land) is situated in Plot No. 54/1 as alleged in the written statement?

vi) To what relief if any, the plaintiff is entitled?

vii) Whether the suit is bad for non-joinder of Gaon Sabha of Hirna Kheri?

viii) Whether the plaintiff is owner of Plot No. 88/2, if so, its effect?

6) The trial court decided issues No. 1 and 7 as preliminary issues, whereafter, evidence of the parties was recorded. After hearing the parties, the trial court found that the plaintiff has proved her case that she was cultivating Plot No. 88/2 and she has right of passage t