- (1.) This civil second appeal has been preferred by appellant-defendants being aggrieved by the judgment and decree dated 11.08.2011 passed by learned Additional District Judge, Phalodi, District Jodhpur in Civil Appeal Decree No.3/2009, whereby the learned first appellate court dismissed the appeal filed by the appellant-defendants and affirmed the judgment and decree dated 06.04.2009 passed by learned Civil Judge (Senior Division), Phalodi, district Jodhpur in Civil Suit No.41/2002, whereby the suit filed by the respondent-plaintiffs for permanent injunction was decreed.
(2.) The brief facts of the case as set out in the memo of appeal are that the respondent-plaintiffs filed a suit for permanent injunction against the appellant-defendants. It was averred in the plaint that houses belonging to the appellant-defendants are situated in Village Kichan and in between these houses, a way is in existence. It was further averred that way in between the houses of the appellantdefendants is used by the villagers for moving towards bank, post office, aurvedic hospital, bus stand etc. and that the appellant-defendants have closed the said way by affixing gate. The respondent-plaintiffs sought permanent injunction against the appellant-defendants to restrain them from making any construction on the alleged way and further to remove the gate affixed by the appellant-defendants.
(3.) The appellant-defendants filed written statement, wherein it was averred that all the roads relating to the village vests in Gram Panchayat and the alleged way does not at all exist. It was further averred that Gram Panchayat had issued construction permission after issuing notices and the construction was done way back in the year 1995. It was further averred that the way alleged by the plaintiffs is private land situated in between the houses of the defendants and no public easementary right is available or established. It was further averred that complete land mentioned by the plaintiffs is patta sud land of defendant No.2 and there is no evidence available to establish that the open space in between the houses of the defendants is public way. It was further averred that since Gram Panchayat was not made party, therefore, the suit is not maintainable.;