JUDGMENT : Appellants are in second appeal against judgment and decree dated 07.04.2006, passed by learned Additional District Judge, Fast Track Court Shimla in Civil Appeal No. RBT(FTC) No. 96-S/13 of 2005/02, titled as Rajul Bhargava and anr. Vs. Vijay Kumar Kohli and anr., whereby the appeal of the appellants has been dismissed by affirming the judgment and decree dated 01.08.2001, passed by learned Sub Judge 1st Class Court No. (1) Shimla, in Civil Suit No. 80/1 of 1998, titled as Rajul Bhargava and anr. Vs. Sh. Vijay Kumar Kohli and anr. 2. Parties hereafter shall be referred to by the same status as they held before learned Trial Court. Appellants herein were the plaintiffs and respondents herein were the defendants before the learned Trial Court. 3. Plaintiff No.1 claimed himself to be the owner of property comprised in Khewat No. 144, Khatoni No. 263 min, and Khatoni No. 264 min, Khasra Nos. 1135,1144,1136,1143 measuring 380.78 sq. mts. and plaintiff No.2 claimed ownership of property comprised in Khewat No. 143, Khatoni No. 260 , Khasra Nos. 1164, 1165, 1145 to 1149 measuring 108.18 sq. mts. both lands situated at Mauza Khar (Tuti Kandi) Tehsil and District Shimla, H.P. 4. The suit was filed in respect of Khasra Nos. 1144, 1145 and 1146 on the premise that Khasra Nos. 1144,1145 and 1146 provided approach to the other parts of property of plaintiffs and their tenants. 5. Plaintiffs had averred that on 10.07.1998, defendants had illegally and unauthorizedly collected bricks and stones on khasra No. 1145 and 1146 and also in front of stairs case comprised in khasra No. 1144 and had thereby tried to create obstruction in the egress and ingress to the ground floor of the property of the plaintiffs. Defendants were stated to have no right over aforesaid khasra numbers and their actions were alleged to be against the rights of the plaintiffs. Accordingly, a decree of permanent prohibitory injunction was prayed against defendants restraining them from interfering with the peaceful occupation and possession and enjoyment of property comprised in Khasra Nos. 1144, 1145 and 1146 of the plaintiffs. 6. In defence, defendants filed their written statement. It was alleged that plaintiffs had suppressed material facts. The plea of estoppel was also raised. On merits, it was submitted that vide agreement to sell dated 07.06.1989, plaintiff No. 2 had sold old Khasra Nos. 1144, 1145 and 1146 of the plaintiffs. 6. In defence, defendants filed their written statement. It was alleged that plaintiffs had suppressed material facts. The plea of estoppel was also raised. On merits, it was submitted that vide agreement to sell dated 07.06.1989, plaintiff No. 2 had sold old Khasra Nos. 549/513/342/1 and 546/334/1 i.e open land and built up structure known as Cottage No.2 to defendant No.2 on receipt of entire consideration amount. It was further submitted that in part performance of aforesaid agreement, the actual and physical possession of sold property was handed over to defendant No.2. The corresponding new khasra number of aforesaid sold land were mentioned as 1145, 1146, 1147 and 1149. On the strength of agreement dated 07.06.1989, the exclusive right over Khasra Nos. 1145 and 1146 was asserted. As far as Khasra No. 1144 was concerned, it was denied that plaintiffs or their tenants were using the approach through said khasra number. It was rather submitted that exclusive right of user of khasra No. 1144 had been granted to defendant No. 2 as an ingress and outgress to the basement portion of Cottage No. 2. 7. On the basis of pleadings of the parties, learned Trial Court framed the following issues:- 1. Whether there exits any passage from Khasra Nos. 1144, 1145 and 1146 to the properties of the plaintiff as alleged ? …..OPP 2. Whether the plaintiff is entitled to relief of permanent prohibitory injunction, as prayed? ……OPP 3. Whether the plaintiff is estopped from filing the suit? …….OPD 4. Whether the plaintiff has no cause of action, as alleged? ……OPD 5. Relief. 8. Issue Nos. 1 to 4 were decided in negative and consequently the suit of the plaintiffs was dismissed. Learned Trial Court dismissed the suit of the plaintiffs, firstly by taking into consideration the fact that none of the plaintiffs had appeared as witness rather it was one Ramesh Chand Bhargava, who appeared as PW-1 in the capacity of General Attorney of plaintiffs and secondly, learned Trial Court placed reliance on the fact that the plaintiffs had otherwise failed to prove the allegations. As far as, PW-1 Ramesh Chand Bhargava was concerned, he was stated to have not made any submission with respect to existence of passage on Khasra Nos. 1144,1145 and 1146. The other witnesses of the plaintiffs Sh. As far as, PW-1 Ramesh Chand Bhargava was concerned, he was stated to have not made any submission with respect to existence of passage on Khasra Nos. 1144,1145 and 1146. The other witnesses of the plaintiffs Sh. Om Prakash Gupta as PW-2 had stated that defendant had kept bricks and stones on the stair and had closed the path. As per PW-2, the path was closed even on the date the witness had made statement in the Court. Taking notice of all these facts learned Trial Court held that plaintiffs had failed to establish on record the existence of any passage on the spot and any threat to obstruct the said path by defendants. 9. In first appeal, learned Lower Appellate Court maintained the judgment and decree passed by learned Trial Court but on different premise. It was held that the plaintiffs had suppressed the material facts and therefore, had also not appeared in the witness box. Reliance was placed upon the agreement Ext. DW1/A executed between plaintiff No. 2 and defendant No.2, wherein, area within Khasra Nos. 1145 and 1146 was reserved for use of path. Further, the path and steps shown in blue portion in plan Ext. DW1/B was held to be used by defendants. Applying the principle, that the person not approaching to the Court with clean hands is not entitled to relief of injunction, the appeal of the plaintiffs was dismissed. 10. The instant appeal has been admitted on following substantial questions of law:- “2. Whether there has been complete misreading of documentary evidence of the appellants, namely, Ext. PW1/C PW1/D, PW1/E, PW1/G and PW1/H resulting into palpably erroneous conclusions by the Courts below and if so to what effect? 3. Whether the appeal No 2 had at any point of time granted any right of passage to the defendants as claimed by the when the khasra N. 1144 did not belong to the said appellant and could the defendants claim any right on the property of the appellant No. 1 in the absence of any grant by him? 4. Whether both the Court below have totally misinterpreted the pleadings, evidence and the law resulting into illegal findings and resultant miscarriage of justice to the appellants and if so to what effect? 5. Whether a mere agreement of sale creates any vested right in the property subject matter of such agreement of sale?” 11. 4. Whether both the Court below have totally misinterpreted the pleadings, evidence and the law resulting into illegal findings and resultant miscarriage of justice to the appellants and if so to what effect? 5. Whether a mere agreement of sale creates any vested right in the property subject matter of such agreement of sale?” 11. I have heard learned counsel for the parties and have also gone through the records. 12. At the time of hearing Mr. Ajay Kumar, learned Senior Advocate fairly admitted that as far as Khasra No. 1145 and 1146 are concerned, they were sold to defendant No. 2 and thereafter plaintiff possibly could not stake any claim without reserving any right in that behalf. He, however, assailed the judgments and decrees passed by both the Courts below in respect of Khasra No. 1144. As per Mr. Ajay Kumar, learned Senior Advocate, there was sufficient material on record suggesting existence of right of passage over Khasra No. 1144 of the plaintiffs and its obstruction was almost admitted by defendants. 13. On the other hand, Mr. B.R. Verma, learned counsel for the respondents has supported impugned judgments being in accordance with the facts of the case and law applicable thereto. 14. It is not in dispute that an agreement to sell was executed between plaintiff No. 2 and defendant No. 2 on 07.06.1989 in respect of the property comprised in Khasra No. 546, 334/1 and Khasra No. 549,523 and 342/1. Perusal of agreement Ext. DW1/A reveals that the property agreed to be sold by virtue of aforesaid agreement was identified on site plan Ext. DW-1/B. Parties have been in agreement on factual aspect that the passage /stair case in Khasra No. 1144 found mention at clause-6 of the agreement, and the purchaser was granted right of passage through said Khsra No 1144. On the strength of this recital, learned counsel for the defendants submits that the exclusive right of this stair case was also given to defendant No. 2, hence, the claim of plaintiffs over such passage was without any basis. 15. This Court is not persuaded to subscribe to the contention raised on behalf of leaned counsel for the defendants, for the reason that Clause-6 of Ext. DW1/A does not provide exclusive right of user of passage over khasra No. 1144 to defendant No. 2. It only mention that purchaser shall have a right of user. 15. This Court is not persuaded to subscribe to the contention raised on behalf of leaned counsel for the defendants, for the reason that Clause-6 of Ext. DW1/A does not provide exclusive right of user of passage over khasra No. 1144 to defendant No. 2. It only mention that purchaser shall have a right of user. This finds strength from the fact that khasra No. 1144 was not sold or agree to be sold vide agreement Ext. DW1/A. Admittedly, it belongs to plaintiff No. 1. In case, the exclusive rights were to be given to defendant No. 2 in respect of Khasra No. 1144, it also would have found mention in the description of land agreed to be sold to defendant No. 2, vide agreement Ext. DW1/A. 16. As noticed above, agreement DW1/A was executed in 1989. It is not known whether sale deed was subsequently executed or not. 17. For claiming decree of injunction, plaintiffs were required to prove firstly the existence of their right and secondly, the obstruction. The material on record suggest existence of both. The Khasra No. 1144 was in ownership of plaintiff No.1. Defendant No. 2 had been granted only a right of user, which cannot be construed to mean that plaintiffs had surrendered all their rights in said portion of property. The moment defendants claimed their exclusive right over Khasra No. 1144 and denied the right of plaintiffs, amounted to obstruction and warranted the grant of injunction. 18. Substantial question of law Nos.3 to 5 are answered accordingly and substantial question of law No. 2 is rendered infructuous. 19. Accordingly, judgment and decree dated 07.04.2006, passed by learned Additional District Judge, Fast Track Court Shimla in Civil Appeal No. RBT(FTC) No. 96-S/13 of 2005/02, titled as Rajul Bhargava and anr. Vs. Vijay Kumar Kohli and anr., affirming the judgment and decree dated 01.08.2001, passed by learned Sub Judge Ist Class Court No. (1) Shimla in Civil Suit No. 80/1 of 1998, titled as Rajul Bhargava and anr. Vs. Sh. Vijay Kumar Kohli and anr. is set aside. The suit of the plaintiffs is decreed only to the extent that plaintiffs were entitled to a decree of permanent prohibitory injunction against the defendants restraining them from interfering in the right of user of the plaintiffs on passage/stair case over Khasra No. 1144 situated in Mauza Khar (Tuti Kandi), Tehsil and District Shimla, H.P. 20. is set aside. The suit of the plaintiffs is decreed only to the extent that plaintiffs were entitled to a decree of permanent prohibitory injunction against the defendants restraining them from interfering in the right of user of the plaintiffs on passage/stair case over Khasra No. 1144 situated in Mauza Khar (Tuti Kandi), Tehsil and District Shimla, H.P. 20. The appeal is accordingly disposed of, with no order as to costs.ending miscellaneous applications, if any, shall also stand disposed of.