- (1.) THIS civil second appeal preferred by appellants -plaintiffs is directed against the judgment and decree dated 28.03.2011 passed by learned District Judge, Merta in Civil Appeal No. 31/2006 dismissing the appeal filed by the appellants -plaintiffs against the judgment and decree dated 6.10.2006 passed by learned Civil Judge (Senior Division), Merta in Civil Original Suit No. 68/2000 (55/1999), whereby the suit for permanent injunction filed by the appellants -plaintiffs was dismissed. The brief facts of the case are that the appellants -plaintiffs filed a suit for permanent injunction against the respondents -defendants stating inter alia that there is a bada of plaintiff No. 1 Aasu Singh situated in Khasra No. 13 in village Panchdoliya Khurd measuring 1/2 bigha. The plaintiffs got Khatedari rights over the said bada in the year 1980. The exit of that bada is towards the north side, which leads to the public way through Khasra No. 28. The plaintiffs are using the disputed way for last 30 years. According to the plaintiffs, the neighbours Arjun Singh and Amar Singh also use the same passage to reach the main road. It has been averred that at the time of settlement, certain land including the disputed way acquired by the government and the same was mutated in the name of government and the said property still exits as non -cultivating property. However, the defendants manipulated the revenue record in connivance with concerned Patwari and mutated the land in their favour, for which, the plaintiffs already initiated proceeding before the competent court. It is alleged in the suit that the defendants with the ulterior motive are adamant to obstruct the disputed public way. It was prayed in the suit that defendants may be restrained from causing any hindrance and closing or disturbing in the peaceful usage of the disputed way. The defendants filed written statement and submitted that though the bara of plaintiffs is situated in Khasra No. 13 but he has encroached upon 11/2 bigha of land and they are not using the disputed way for last 30 years. It was further averred that Khasra No. 13 is having total 10 bigha of land, out of which 5 bigha is allotted to different khatedar whereas the remaining land is still lying vacant. The plaintiff can use that land for the purpose of way to reach their bara. The defendants averred that they are having possession over Khasra No. 28 and there is no way in this land. The defendants made averments in regard to the presence of alternative way and stated that towards the north side of Khasra No. 13, there is a way which can be used by the plaintiffs. They finally prayed for rejection of the suit.
(2.) ON the basis of the pleadings of the parties, the learned trial court framed as many as five issues and recorded evidence of both the parties. After hearing the arguments of the parties, the learned trial court dismissed the suit of the appellants -plaintiffs vide judgment and decree dated 6.10.2006, against which the appellants -plaintiffs preferred an appeal before the learned lower appellate court. The learned lower appellate court vide the impugned judgment and decree dated 28.3.2011 dismissed the appeal and affirmed the judgment of the learned trial court. Hence, the appellants -plaintiffs have preferred this second appeal.
(3.) THE learned counsel for the appellants -plaintiffs contended that whole approach of the learned courts below was perverse and the judgments and decrees passed by them are without consideration of the facts and law applicable to the case and perverse to the material available on record. The main contention of the learned counsel for the appellant is that the learned trial court as well as the first appellate court dismissed the suit as well as the first appeal solely on the ground of contradictions in nazari naksha 'ka' and the map prepared by the Commissioner. The learned counsel for the appellant further contended that the first appellate court committed grave error while deciding the first appeal because the first appellate court has not decided the first appeal as per the provisions of Order 43 of the Civil Procedure Code.;