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Court No. - 6

Reserved

Case :- SECOND APPEAL DEFECTIVE No. - 322 of 2021

Appellant :- Raghunandan

Respondent :- Om Prakash And 4 Others

Counsel for Appellant :- Balbir Yadav

Hon'ble J.J. Munir,J.

1.

This is a defendant's appeal arising out of a suit for

permanent prohibitory injunction.

2.

Original Suit No. 361 of 2000 was instituted by the

plaintiff-respondents against the sole defendant-appellant,

Raghunandan seeking to injunct the said defendant from raising

constructions over the way denoted by letters अ ब स द situate at

Village Devrampur, Farrukhabad, Pargana Pahara, District

Farrukhabad, or otherwise obstructing the said way, or in any

other manner interfering in the movement of the plaintiff-

respondents over the said way.

3.

Heard Mr. Balbir Yadav, learned Counsel for the

defendant-appellant in support of the motion under Order XLI

Rule 11 C.P.C.

4.

The case of the plaintiff-respondents is that to the north of

the houses of plaintiff nos.1 to 4 and to the south of plaintiff

no.5's house, there is a way providing ingress and egress to the

plaintiffs. The aforesaid passage on the western side opens into

the public lane. The entire way/ passage affords access to the

houses of the plaintiffs as shown at the foot of the plaint by

Hindi Alphabets अ ब फ म ग ख य स द. The plaintiff-respondents,

who shall hereinafter be referred to as, 'the plaintiffs', except in

the case of an individual reference, say that they have been

using the aforesaid way/ passage entering from the western

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side, exiting the public lane, to access their houses since the

past 60 years without any let, hindrance or obstruction. This

passage, the plaintiffs have been utilizing since the time of their

ancestors, and further that there is no other alternate ingress or

egress to their houses. The defendant, without any right, wants

to obstruct the plaintiffs’ passage/ way, inasmuch as he is

neither the owner or in possession of any part thereof. The

defendant is said to be a dishonest and powerful man, who

forcefully and illegally attempted to raise constructions over a

part of the way/ passage, denoted by letters अ ब स द in the

plaint map. He made that attempt on 15.07.2000 by forcibly

getting a foundation dug up, where some constructions were

raised up to the plinth. The plaintiffs resisted the aforesaid

violation by the defendant, which led to some respectable

persons of the local to intervene. The defendant relented, but on

11.06.2000 he again threatened the plaintiffs with forcible and

illegal construction over the part of the way denoted by letters अ

ब स द. The part of the way/ passage that the plaintiffs use,

denoted by letters अ ब स द, shall hereinafter be referred to as,

'the suit property'. It is the plaintiffs' case that faced with the

imminent threat as aforesaid by the defendant to raise

constructions over the suit property and obstruct ingress and

egress to their house, they have instituted the present suit.

5.

The defendant-appellant, Raghunandan filed a written

statement denying the plaint allegations. He pleaded that

plaintiff nos.2 to 4 have their passage towards the east, where

there is a way oriented south to north. The said way emerges

near the Railway Line. So far as plaintiff no.5 is concerned, he

has his passage towards the south, which too is oriented

eastwards and opens into the same passage oriented from

north to south i.e. the one available to the other four plaintiffs.

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All the plaintiffs use the aforesaid way for ingress and egress to

their homes. So far as the suit property is concerned, the case

of the defendant is that it is no part of any way or passage, over

which the plaintiffs have any kind of right. It is his private land

that he would use as his abadi. The plaintiffs, out of avarice,

want to encroach the defendant's land by dubbing it as a way/

passage. It is more specifically pleaded that the entire land

denoted by let