Their argument is , in the will it is written that "in the path,all three have rights to walk". As it is written as "walk",they are arguing that the width should be 3 feet only because it is walk area. But as per house document the width of this path is 15 feet.Is their argument valid?

Thanks a lot sir for your  valuable suggestions. Further to the previous questions I w'd like to know few other things.

The opponent lawyer has asked us during cross questioning that how did we file a case against the path to the house when the house is neither  partitioned  nor the  partition deed executed. But there were many private surveyors  appointed by my aunt  tried to divide the house and one of them has given us a document according the survey he did, where he mentioned that the way is only 3 feet .As those surveyors are appointed by my aunt ,they were always giving only 3 feet for the way, we finally went for the injunction order because these surveyors are not measuring as per the original house document which says it is 15 feet . So my father answered the same ,and they said Ok. But I w'd like to know is there any rule like that only after partition is done one can file a case  for the way? Whenever the surveyor comes to dive the property ,the problem is happening at the path. And we were never able to register it with accurate marks.

In original will, my grandfather clearly mentioned that how to divide among 3 of his children and he gave measurements. Briefly he mentioned like below.

In 1200sqft ,the second house is for the daughter which spread across 600 sqft, first house is given to the two sons 300 and 300sqft  for both and the path to the first house can be used by all 3 of them with all the  walking rights.
S0 we are using  as per the document  and put the marks across the house  as per private surveyor, except for the path where they are not accepting for the 15 feet, though the first house measurement document clearly says it is 15ft.

And  2nd question he asked us  that  we are not maintaining house properly. 
The grandfather wrote will in 1992, but my aunt said that if we start living in that house, reaming siblings  who did not get any stake in the house  can claim for the property as this was not registered will. So she asked my father not to come to the house at least  for 11 years. So my father after he got retired in 2008 he went to the house and we started living there after repairing the house as our part  was fully damaged . Till that time they were using entire house. Right from the time we started living there , they were always making fights for small reasons and  we faced some issues including losing our mother in 2011 . As it was never peaceful, we did not like my father staying there alone .So my father came to me to another city where I am living and he kept  a servant to clean house regularly and he is  going to the place to  attend court and he personally cleans the house every time he goes with the help of servant. But I w’d like to know is it a really problem if we are not maintaining it properly to claim for the injunction?

For this injunction order case, is there any time limit that the judgment to be given with in some years ? or they can take indefinite adjourns? We got temporary injunction order in 8 months after we filed case. Now it is  2  years after that temporary injunction given in favour of us. But we are  not getting permanent injunction order.  Actually here the Judge is giving much time to our opponents and the judge's words always are in favor to our opponents these days. We don't understand what is the reason. If we ask a date in favor of us for the next adjournment ,they are reluctant to give on that date, but they are giving dates as per our opponent's request and convince. The judge was saying to our lawyer that ,let us give time according to their time, because they are senior lawyers. Sometimes we are losing hope though we have all original document in favor of us because of this behavior.

Can we sell our property when the case is continuing on the path like this with the temporary injunction order? How long this temporary injunction order will be valid? Or even after the case is over , will there be any problem to sell our part of the house. because it is a combined house. Aunt’s house is anyway it is separate.

We already requested  to appoint  a commissioner to inspect the house and give the measurements to the court, So court has appointed one person he gave his report  ,he mentioned that path is 15 feet after measuring the whole house. When he asked the aunt to submit her document she said she does not have her house document ,so he measured with the help of the document which is submitted by my father for the first house. I would like to inform you that the current  state of  the case is the opposite lawyers are cross questioning us.  Please  advise for us to go further and please let us if we are going in right direction.

Hi , we have received Judgment ‘against’ to us recently like below (as it was). The judgment is not clear about what we have asked for. We have asked for Injection on the Path of 15 feet width for all 3 people. They talked more about the opponent’s constructions in the common path instead of the path width and length, (this is what we concerned about in the case)
Though the Judgment says Injection can’t be granted, they did not mention the path is only 3 feet.
They mentioned that the defendants are not opposing to use the path. Hence can we treat this as opponents have agreed the path is 15*75 as mentioned in judgment point 4 below?
Should we really   go for appeal or should we  for  partition case  or should we go for both?
If we are going for appeal, do we have to appeal only in the district court or do we have the right to directly appeal  in high court as the district court is in same town and same court complex where we lost the case. 
The reason behind why we don’t want to appeal in same court complex is due to following reasons
1. We strongly believe that judges were influenced by our opponents as they are known people to the judge ;  In Point 9, they mentioned we have not provided any document proof says that they are obstructing us to use the passage, but we have provided one document which is given by the surveyor appointed by the opponents when we both called for partition. We opposed that patition as they are restricting the path to be only 3 feet; and this document is missed in the list of documents given in the judgment. So we seriously feel that it is highly influenced
2. My father is aged and unable to travel every time to  his native as we are living  very far .Whenever my father could not attend the court, judge is saying he has to attend every time though his presence was not important for that pleading. At the same they were never attending  properly and judge did not say anything to them any time .They  were given plenty of time to bring their document when they said they have documents to support 3 feet of path width for almost 2 and half years. We just waited 2 years only to bring their document. Finally they never produced it. Still the case went in favor to them
And what could be time limit either to appeal or file case for partition, nothing is mentioned in judgment
 J U D G M E N T: This suit is filed by the plaintiff seeking the relief of declaration of his right to usage of the disputed passage and for consequential injunction restraining the defendants from curtailing his right and for relief of mandatory injunction to direct the 2 nd defendant to remove the obstructions in the joint passage, and also for injunction against the 1 st defendant from causing obstruction in using joint water 2 sump with tap connection. 
2. The averments of the plaint in brief are: 
The plaintiff and defendants 1 and 2 are children of late Mr.X  who during his life time purchased two items of vacant site to an extent of 1273 sq. feet, and 4281.4 sq. feet in total 5554.4 sq. feet from MRs Y , rep. by her General of Power of Attorney XXXXX under registered sale deed dt.1.3.1958, and since then, he was in possession of the property, which are shown as A & B plots in the plaint schedule. Subsequently he also purchased an extent of 633 sq. yards on the west of the above said items shown as plot-C in the plaint from one Mr Z, later Mr X constructed two floored building and terraced building in plot-C. The said late MrX during his life time executed an un-registered will dt.6.2.1996 bequeathing the southern portion of two floored building to the plaintiff in item -1 and 2, and northern portion of the building to the 1 st defendant, and he bequeathed the other two floored building in item No.3 to 2 nd defendant. Subsequent to the death of Mr X on 9.3.1997, the will came into effect and the plaintiff and defendants are enjoying their respective shares by getting mutation of their names in the municipal records.

 3. The plaintiff says that at the time of purchase of item 1 and2, from Mrs Y, she provided a joint passage of 75x15 feet for ingress and egress without any obstruction, but recently the defendants obstructed the joint passage i.e., ABCD, as the 2 nd defendant put up water tap connection and also constructed septic tank in the joint passage and both parties jointly put up a water tap 3 connection at 'W' with a sump to their respective buildings, but the 2 nd defendant is obstructing the plaintiff from using the joint passage ABCD by falsely claiming the width of the passage as 3 feet out of 15 feet. Hence, the plaintiff is constrained to file the suit for declaration of his right to use the passage i.e., ABCD on the north of item-3 and for injunction. 

4. Defendants 1 and 2 filed their written statements by admitting the relationship between the parties and also the mode of acquisition of the property by their father late Mr X. They contend that in pursuance of Will, no partition was effected, and on the advise of well wishers of the parties, though the defendants tried for partition, the plaintiff did not cooperate, in fact the water tap and sump are commonly used by both parties and plaintiff is walking into drawing room and kitchen of 1 st defendant, when ever he wants in view of absence of dividing wall in between them. The defendants say that in the absence of partition, the relief claimed by the plaintiff cannot be granted. In fact the will of their father did not give the width or length of the path way, but simply mentioned that they are entitled for easementary right of passage. Hence, the plaintiff's claim for path way alleging the passage to be 75x15 is baseless. In fact the plaintiff has behaved highhandedly by disconnecting the pipe from over head tank and made the defendants to fetch water from the sump using vessels daily, and the plaintiff is using the defendants' motor to lift water from the sump to the over head tank. The plaintiff inspite of causing lot of inconvenience to the defendants has filed this suit with false allegations only to harass them. Hence, prayed to dismiss the suit. 
5. Basing on the pleadings, the following issues were framed  for trial: -
 1. Whether the plaintiff is entitled to seek the declaration of his joint right of usage of passage 75 x 15 feet ABCD?
 2. Whether the plaintiff is entitled to consequential injunction restraining D1 and D2 from using the joint passage of 75 x 15 feet ABCD as prayed for? 
3. Whether the plaintiff is entitled to mandatory injunction directing the 2 nd defendant to remove water Tap connection and septic tank in the joint passage of 75 x 15 feet ABCD as prayed for? 
4. Whether the plaintiff is entitled to seek the permanent injunction restraining the D1 from causing obstruction for using joint water sump with tap connection at 'W' as prayed for? 
5. To what relief ? 
6. On behalf of the plaintiff, PW.1 was examined and Exs.A1 to A7 were marked. On behalf of the defendants DWs.1 and 2 were examined and Exs.B1 to B4 were marked. 
7. Heard.
 Issue No.1 : -
 8. As seen from the pleadings, the undisputed facts of the case are, the plaintiff is brother of defendants 1 and 2, the schedule property were acquired by their father late MrX, and he executed Ex.B4 Will on 6.2.1996 bequeathing the properties among his children and subsequent to the death of MrX, the Will came into effect and his children including the plaintiff and defendants are in 5 possession and enjoyment of their respective shares. But the parties are at variance with regard to the usage of disputed ABCD pasage purported to be a joint passage. No doubt, both the parties are not denying that ABCD is a passage, but the plaintiff says that the 2 nd defendant by constructing sump and by putting tap connection over the ABCD passage, is causing obstruction to the plaintiff in using the joint passage, as he has equal right along with defendants to use the passage, his right cannot be curtailed. On the other hand, the defendants who admit ABCD to be joint passage state that the plaintiff is using the disputed ABCD passage, and they never objected him from using the sump or water tap connection and septic tank in the ABCD portion, but say that they were laid down by their father MrX during his life time, and that it was not laid by 2 nd defendant as alleged by the plaintiff, so as to obstruct the plaintiff from using the passage.
 9. Both the parties except examining themselves as PW.1, DWs.1 and 2 have not produced any other evidence in respect of their contentions. As seen from the cross-examination of PW.1, he admitted that in view of his job, he was moving at various places till 2007, and he was not residing in the schedule property, and it is the defendants who are in possession of the schedule properties who have put water tap connection and septic tank in the ABCD passage. But the plaintiff who alleged so, did not put forth as to when the defendants have constructed the septic tank and water tap connection over ABCD passage. When the plaintiff alleges that it was constructed by 2 nd defendant, it is for the plaintiff to produce cogent evidence and explain as to when the same were raised over ABCD passage by 2 nd defendant, similarly he should also specify the acts of 2 nd defendant in causing obstruction to his usage of the passage, but neither in plaint nor in the evidence PW.1 nothing is whispered specifying the acts of 2 nd defendant in causing obstruction to the plaintiff or at least the dates on which, the 2 nd defendant is said to have obstructed the plaintiff from using the passage. 
10. On the other hand, the defendants contend that the alleged water tap connection and septic tank were constructed by their father during his life time, and were not newly erected by them. In which event, it is the burden of the plaintiff who has approached the court seeking relief, to produce cogent evidence and explain as to when the said tap connection and septic tank were raised over the disputed passage. More over as rightly argued by the defendants' counsel when the septic tank is below the ground, in what way it would obstruct the movement of plaintiff over the disputed passage? If at all construction of septic tank over ABCD would cause obstruction in using the passage, then it should cause hindrance to the defendants, who are also using the passage but there is no allegation of such hindrance in using the passage by the defendants, in which event, the allegation of the plaintiff without even specifying the dates or acts of defendants in causing obstruction to him in using the passage seems to be baseless. More over, as rightly argued by the defendants counsel on one hand, the plaintiff himself contended that the disputed passage is a joint passage and inconsistent to his plea for declaration of his right to use the joint passage, consequently he sought injunction to restrain the defendants from using the joint passage. If the disputed passage is joint passage for both parties, then the parties have equal right to use  the passage, and the plaintiff cannot claim to restrain the defendants from using the passage, while contending it to be joint passage. Hence, this court in view of the discussions made above opines that plaintiff who has approached the court alleging that the joint passage is being obstructed by defendants to be used by him has failed in establishing his case by satisfying, as to when the cause of action arose for him to seek relief of declaration of right to use the joint passage, by specifying the dates when the defendants caused obstruction or when the alleged septic tank or water tap connection was raised by the defendants by disproving the defence of defendants that they were not erected by them, but were set up by their father late Mr X. Hence, for the reasons stated above, and also for the reason that when the defendants themselves are not denying the right of plaintiff to use ABCD passage, his prayer for declaration becomes baseless. Accordingly, this issue is answered in against the plaintiff. 
Issue No.2:-
 11. In view of the findings given under Issue No.1, holding that the plaintiff is not entitled to the relief of declaration of his right to use the disputed passage, as he failed in proving that his right to use the passage was obstructed by the defendant, this court opines that the plaintiff having pleaded the disputed passage to be a joint passage seeking to restrain defendants from using the joint passage is not only inconsistent with his earlier plea, but also unlawful to seek injunction against the defendants who are admittedly coparceners having right of usage of joint passage. In fact the plaintiff is trying to blow hot and cold which is impermissible. Hence, the relief of consequential relief of injunction to restrain the defendants from using the joint passage 8 cannot be allowed. Accordingly, this issue is also answered against the plaintiff. 
Issue No.3:-
 12. The plaintiff contended that the water tap connection and septic tank in the joint passage were laid by defendants causing obstruction to him, and they have to be removed, but as discussed in the fore going paragraphs, this court held that when the plaintiff has approached the court seeking relief that the alleged obstructions were put by the defendants, it is for him to establish as to when the alleged obstruction was caused, for which there is absolutely no material. On other hand, the defendants contend that water tap and the septic tank were laid by their father. Admittedly when the plaintiff was not in the schedule property since the death of his father, and it is the defendants who were in possession of the property, as seen from the evidence of plaintiff himself as he stated to have come into the schedule property in the year 2007, without even stating as to when the septic tank and water tap connection were erected over ABCD passage, which is admittedly a joint passage, the plaintiff seeking to remove the septic tank and water tap connection from joint property is unsustainable. Hence, this issue is also answered against the plaintiff. 
Issue No.4:-
 13. It is undisputed fact that water tap connection shown as 'W' as in the plaint plan is used commonly by both parties to the suit despite it, the plaintiff is seeking injunction to restrain the defendants from using the water tap connection, in fact, his prayer itself is self incriminating because having pleaded that water sump with tap  connection at W, to be a joint sump, he cannot seek to restrain a coparcener from using the joint water sump with tap connection, even otherwise with regard to the alleged obstruction said to be caused by 1 st defendant in respect of water sump, there is no whisper in the plaint pleadings, as to when and how the obstruction was caused by 1st defendant, in which event how far the claim of plaintiff for injunction against 1 st defendant in respect of water sump at 'W' is tenable. Hence, the relief of injunction as claimed by the plaintiff against the 1 st defendant is also declined. Accordingly, this issue is answered against the plaintiff. 
Issue No.5:- 14. In the result, the suit is dismissed with costs. Dictated to the Stenographer, transcribed by him, corrected and pronounced by me in the open Court, this the day of xx day of xx, xxxx