Compliance of Order 1 Rule 8 C.P.C. is mandatory in a suit filed under Section 91 of the C.P.C.

Alok Singh, J.

Present second appeal is preferred assailing the judgment and decree dated 11.10.2012, passed by the 1st Addl. Civil Judge (Junior Division) as well as judgment and decree dated 09.04.2014, passed by the 1st Addl. District Judge, Udham Singh Nagar whereby O.S. No. 10 of 2013, Gurdeep Singh and others Vs Madan Mohan and others was dismissed and appeal arising therefrom was also dismissed by the 1st Appellate Court.

2. Brief facts of the present case, inter alia, are that plaintiff filed O.S. No. 10 of 2003 with the allegation that public pathway is going through the Khasra No. 67 of Village Hempur Ismile & khasra Nos. 50 and 51 of village Hempur Ismile, Tehsil Kashipur whereupon defendants have absolutely no right to make any encroachment. Defendants are intending and extending threats to encroach upon the public pathway by making constructions. If defendants are successful in making encroachment over the public pathway, it wound amount to nuisance, therefore, defendants be restrained in making encroachment by any means over the public pathway.

3. Defendants appeared before the learned Trial Court and filed their written statement and stated that they have absolutely no right and concern over the public pathway going through khasra No. 67 as well as 50 and 51 nor are intending to raise any constructions thereon.

4. Perusal of the ordersheet of the trial court would reveal that learned Trial Court, vide order dated 10.03.2003, was pleased to grant permission to the plaintiffs to file suit under Section 91 of the C.P.C. in the representative capacity.

5. When present appeal was taken up for preliminary hearing on 08.05.2014, following order was passed:-

“Mr. Lok Pal Singh, Advocate for the appellants.

Mr. S.K. Chaudhary, Advocate for the respondents.

Present second appeal is preferred against the judgment and decree dated 11.10.2012 passed by the Ist Additional Civil Judge (Jr. Div.), Kashipur as well as judgment and decree dated 9.4.2014 passed by the Ist Additional District Judge, Udham Singh Nagar, whereby O.S. No. 10 of 2003, on the file of learned Trial Court, was dismissed and appeal arising therefrom was also dismissed by the First Appellate Court.

Plaintiffs/appellants filed O.S. No. 10 of 2003, Gurdeep Singh and others v. Madan Mohan and others, seeking permanent prohibitory injunction restraining the defendants/respondents, herein, in making any encroachment by any means over the public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara, Tehsil Kashipur, District Udham Singh Nagar. It is stated in the plaint that the land of Khasra No. 67 of Village Hempur Ismail and adjacent land of Khasra No. 50 & 51 of Village Kundeshwara is a part of public pathway, whereupon defendants have absolutely no right either to encroach upon by way of raising construction or to create any obstruction in the public pathway.

Defendants/respondents, herein, filed their written statement before the learned Trial Court stating therein that defendants have absolutely no concern, right or possession over the disputed public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara.

Learned Trial Court was pleased to dismiss the suit having observed that plaintiffs could not prove that defendants ever intended to encroach upon the disputed public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara, and appeal arising therefrom was also dismissed by the first Appellate Court.

Mr. Lok Pal Singh, learned counsel appearing for the appellants submits that in view of the admission made by the defendants/respondents in the written statement that they have absolutely no concern, right or possession over the land of public pathway situated in Khasra No. 67 of Village Hempur Ismail and adjacent Khasra Nos. 50 & 51 of Village Kundeshwara, suit ought to have been decr