- (1.) THIS second appeal under Section 100 CPC is directed against the judgment and decree dated 18.2.2014 passed by the Additional District Judge No.5, Udaipur, whereby the appeal filed by the appellants against the judgment and decree dated 15.10.2013 passed by the Civil Judge (Sr.Div.), Vallabhnagar, District Udaipur has been dismissed.
(2.) THE facts in brief may be noticed thus : the plaintiffs - respondents residents of village Chauhanon Ka Guda filed a suit for permanent and mandatory injunction against the appellants with the averments that a chowk and land of the way was situated in Araji No.36/5 in which doors of their house open; the land is recorded as abadi and belonging to Gram Panchayat Gupdi and ad measures 8 Bigha 11 Biswa. On the Northern side of said Araji, a well is situated in Araji No.40; in the centre of a public chowk, a banyan tree is standing; the defendants have no right on the said public chowk and public way; the shade of the banyan tree is used by the villagers and animals for relaxing and the chowk is being used at the time of marriages and / or deaths etc; the defendants were bent upon trespassing on the said public chowk and had collected 13 -14 tractors of stone and have constructed a temporary boundary wall 3 -4 fts. height and have also cut down the big branches of banyan tree. It was prayed that by mandatory injunction, the stones etc. be got removed from the public chowk and the defendants be restrained from trespassing and / or obstructing the house / movement of the plaintiffs. A written statement was filed by the defendants - appellants, it was claimed that way to plaintiffs No.7 to 17's house was not from disputed land; the land is owned by the defendants No.1 to 3 and Araji No.40 is of their co -khatedari; Araji No.36/5 is not a public chowk, but the same is owned by the defendants and Shambhoo Singh etc; Araji No.40 -36/5 has not been used by the plaintiffs; other villagers Jawan Singh, Shambhoo Singh, Kanku Kuwar are necessary parties.
(3.) THE trial court framed seven issues. On behalf of the plaintiffs 06 witnesses were examined and 10 documents were exhibited. On behalf of the defendants 03 witnesses were examined and 05 documents were exhibited.;