- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 26.09.2011 passed by Additional District Judge No.1, Jodhpur Metropolitan, whereby, the appeal preferred by the appellant -defendant against the judgment and decree dated 04.02.2009 passed by Additional Civil Judge (Junior Division) No.1, Jodhpur has been dismissed.
(2.) THE facts in brief may be noticed thus : the plaintiffs - respondents filed a suit or permanent injunction against the appellant -defendant with the averments that their residential plots were situated in Khasra No. 805/769 at village Jodhpur; the Pattas were issued by the Sub Divisional Officer, Agriculture Land Conversion, Jodhpur on 20.03.1990 in favour of the plaintiffs; development charges were deposited on 17.03.1997 with the defendant and they were in possession of their plots; on the eastern side of their plots a road admeasuring 16x166 ft. was situated, which was being used by them; on 30.12.2004 the Junior Engineer of the defendant visited the site and observed that from Khasra No. 9 after 60 ft. road plots admeasuring 40x60 ft. would be carved out and as the land was not available, the land of the road and plaintiffs' plots would be appropriated; it was claimed that the defendant has no right to carve out plots by overlapping with the plaintiffs' plots and the land which is part of the road; ultimately, it was prayed that the permanent injunction be issued directing the defendant not to create plots overlapping with the land of the road and plaintiffs' house and further not to allot the same. A written statement was filed by the defendant -appellant, inter alia, submitting that the land of Khasra No. 805/769 was land of Shyam Nagar and the plaintiffs have encroached on the land belonging to the defendant and, therefore, the defendant was entitled to remove the encroachment by undertaking due process; the land which has been left for ingress and egress from the plaintiffs house shall not be interfered with; no threat as alleged was ever given; notice under Section 98 of the Urban Improvement Act was not given and the suit was liable to be dismissed.
(3.) THE trial court framed three issues. On behalf of the plaintiffs affidavit of two witnesses were filed, however, PW -1 Laxmi Devi did not appear for cross -examination, PW -2 Shanti Devi was cross -examined and five documents were produced. On behalf of the defendant -appellant neither any oral nor documentary evidence was produced.;