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9. Further that during the earlier proceedings of Suit No. 235/97, the defendant filed a Written Statement on record and admitted that the Metallic Road/Public Passage existed through Khasra No.41. That plaintiff's valuable rights are going to be affected in case if defendant encroaches upon Kacha Rasta/Road. That the defendant has collected stones for construction of wall on said Rasta for encroaching/grabbing 8 inches Kacha Rasta.

10. Plaintiff further stated that the defendant started the construction stone wall on 04.02.2005, and immediately the plaintiff and other neighbours made a protest then the defendant stopped the construction of stone wall. Further that on 05.02.2005 and 06.02.2005, the plaintiff has come to know that the defendant is intending to restart the construction of Stone Wall for grabbing Kacha Rasta/Road with the connivance of local police. That as suich, the plaintiff was constrained to file a suit which was registered as Suit No.169 of 2005 titled as "Smt. Chandro Versus Smt. Prem Vati". That after filing of the said suit, the defendant stopped the encroachment over the above said Rasta, therefore, the plaintiff could not pursue the earlier suit. The said suit No.169 of 2005 was dismissed in default on 10.11.2005. That the plaintiff has not pursued the suit No.169 of 2005 only because the defendant stopped the illegal construction over the Rasta at that stage of time.

60. Defendants have contended that suit is liable to be dismissed for non joinder of necessary parties i.e. other co-owners of Khasra no.41.

61. Rule 9 of Order I says that no suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.

62. In the present case, the plaintiff has sought relief against the defendants only, stating that defendants are encroaching upon Kacha Rasta/passage adjacent to metalled 17 feet road, and it is not case of the plaintiff that other co-owners of Khasra no.41 are encroaching said Kacha Rasta/passage. Accordingly, this Court is of the considered opinion that since matter in controversy is regarding encroachment upon Kacha Rasta/passage by defendants only, other co-owners of Khasra no.41 are not necessary parties to the suit.

75. PW4 stated that defendants raised a boundary wall in their area and 'Rasta' in dispute goes from the side of the said boundary wall. That the same is a public passage and villagers/residents of the said area using said Rasta/passage regularly. PW4 stated that he was present when dispute regarding said 'Rasta' arose. PW4 was cross examined but nothing contrary to the case of plaintiff could be extracted and only suggestions in general were put during his cross examination which he denied.

76. PW5 stated that all the villagers using said 'Rasta' for going to Fatehbur Beri. She further stated that on number of occasions family members of defendants made attempts to encroach upon said Rasta/passage. PW5 was cross examined but herein again nothing contrary to the case of plaintiff could be extracted and only suggestions in general were put during his cross examination which were denied by witness.

ludicrous as it sounds.

98. In the present case, it is admitted case of both the parties that Rasta/passage in question is there in existence. It is also admitted that middle portion of the said Rasta/passage is metalled and both sides of said Rasta/passage has Kacha Rasta/passage.

99. Plaintiff through his witnesses as well as documents particularity certified copies of Khasra Girdwaris filed on record and as referred above, has been able to prove that said Kacha Rasta/passage was being used for as far as 30 years by the public. From the record and testimony of witnesses, it has come on record that Rasta/passage was passing through Khasra No.41 and 42 but plaintiff who is stated to be owner of Khasra no.42 put gate at Khasra No.42, and thereafter disputes arose and multiple litigations started.