KAILASH CHANDRA JOSHI - (1.) THIS civil second appeal under Section 100 of the C.P.C. has been preferred by the appellant -plaintiffs being aggrieved by the judgment and decree dated 15.05.2009 passed by learned District Judge, Chittorgarh in Civil Appeal No. 5/2009, whereby the learned lower appellate court dismissed the appeal filed by the appellant -plaintiffs and affirmed the judgment and decree dated 15.12.2008 passed by learned Additional Civil Judge (Senior Division) No. 2, Chittorgarh in Civil Original Case No. 6/2006, whereby the learned trial court dismissed the suit for granting mandatory injunction filed by the appellant -plaintiffs.
(2.) The brief facts giving rise to the present appeal are that the appellant -plaintiffs filed a suit for mandatory injunction and direction to the respondent -defendants to sell the strip of land situated in the western side of the house of the plaintiffs marked as ABCD in the 'Najri Naksha' to the plaintiffs. Prior to filing of the suit, the father of the plaintiffs submitted an application before the respondent -defendants for sale of the land in question and thereafter on 06.04.1999, the respondent -defendants invited objection to the sale of the land. The strip of land in question is situated at a distance of about 12 feet from the road towards the southern side of the road and adjoining to this strip of land, a public lavatory is in existence. The respondents shown their inability to sale the land in question as the said land is part of the road. The father of the plaintiffs also requested to review to the order, but the respondent -defendants refused the prayer and rejected the application. Thereafter the appellant -plaintiffs also submitted a representation to sell the land in question to them, but no action was taken on that representation, therefore, they filed the civil suit for mandatory injunction. The respondent -defendants filed written statement and denied the averments made in the plaint. It was stated that the land in question cannot be allotted or sold because it is a part of the road.
(3.) ON the basis of the pleadings of the parties, the learned trial court framed as many as 3 issues and recorded the evidence of the parties. The learned trial court decided the issue No. 1 and 3 against the appellant -plaintiffs and gave the finding that the respondent -defendants have not recognized the land in question as a strip of land and the suit is barred by limitation. Thus, the learned trial court dismissed the suit vide the impugned judgment and decree dated 15.12.2008.;