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28. The issues are taken together being interconnected and requires common discussion .

29. From the Pleadings of the parties, it is the case of the plaintiff that there is open space between the plot of the plaintiff and the defendant No. 1 which is used as common passage for ingress and egress by both of them. However, in the joint written statement Filed by defendant No. 1 to 3, it is their stand that there is no common passage but at the spot there is property of someone else and in fact the defendant no.2 is in possession of the suit property, on the other hand as per the defendant No. 5, the site plan filed by the plaintiff is not according to actual position on the spot and the site plan filed by the Local Commissioner is correct and according to the actual position on the spot. As per him the portion shown in green and red color is in possession of defendant No. 1 and 2 and the remaining portion is in his possession as well as in the possession of defendant No. 3 and their brothers and also with one Dorjee Wandi and Nandish Sarangal.

31. On the other hand the defendant No. 1, in his evidence by way of affidavit reiterated the stand taken by him in the joint written statement and in his cross-examination, he initially deposed that the common passage is his property and the Ownership of the property shown in red colour (i.e. suit property) in the site plan filed by the local commissioner Ex. DW1/DX-1 is with him and he can produce the documents related to the ownership of the property and his cross examination was deferred. In his further evidence, the defendant no.1 had produced the sale deed of his plot measuring 100 sq. yards as Ex. DW1-DX-2 and he admitted that the same relates to plot bearing khasra no.360 and the common passage is on this plot only. He further deposed that the land had not been divided properly being village land and he further admitted that by virtue of sale deed only rights of 100 sq. yards in khasra no. 360 Village Bijwasan has been transferred in his favour. Pertinently, no document is produced by the defendant no.1 to show that either he is the owner of open space used as common passage or the suit plot. He had tried to pose the picture during his cross-examination that the sale deed EX. DW1-DX-2 pertains to the open space however, in the latter part of his cross examination he admitted that the open space is approx. 150 sq. yards whereas the sale deed in his favour is of only 100 sq. yards plot. He further deposed that he cannot tell whether the open space is in khasra no. 355 or not. As far as the wall is concerned, he admitted that he had constructed the wall after the execution of the sale deed in favour of the plaintiff in the month of December 2010.