- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 23.08.1995 passed by Civil Judge (Junior Division), Jodhpur City, Jodhpur ('the trial court') as upheld by the appellate decree dated 16.10.2008 passed by Additional District Judge (Fast Track) No.4, Jodhpur ('the appellate court').
(2.) THE facts in brief may be noticed thus: the suit was filed in the year 1974 by Shankar Lal, father the respondents -plaintiffs seeking permanent injunction against Abdul Majid, father of the appellants, inter alia, with the averments that the land in question was sold by the Urban Improvement Trust, Jodhpur to the plaitniff on 10.04.1972; the sale was got registered; contruction permission was granted on 27.04.1974 and map was passed by the concerned authority; they started raising construction at the site, the same was sought to be interfered with by the defendant, and therefore, by way of permanent injunction he be restrained from raising construction at the said site. A written statement alongwith counter claim was filed by the appellant ­ defendant, inter alia submitting that Urban Improvement Trust had no right to sale the land in question on 10.04.1972 as the same did not vest in it. The land does not fall within the definition of strip of land and besides that by 'Patta' dated 01.06.1954 issued under the Marwar Patta Act, 1921, the land had already been sold to the defendant and therefore, the suit deserves to be dismissed and by way of counter claim claimed cancellation of sale dated 10.04.1972 and sought possession.
(3.) THE trial court framed six issues and after evidence was led by the parties, came to the conclusion that the land in question was transferred by the Urban Improvement Trust to the plaintiffs by sale -deed dated 10.04.1972 and objection filed claiming the same to be part of road, was rejected by the Collector and the land in question was in possession of the plaintiffs. On the 'Patta' claimed in favour of the defendant, the trial court relying on the judgment of this Court in the case of Bhikam Chand v. State of Raj. & Ors., AIR 1957 Raj 84, came to the conclusion that as the provisions of Marwar Patta Act, 1921 have been held to be unconstitutional, the 'Patta' was void, and consequently based on its finding on the issues relating to the possession etc., the suit filed by the plaintiffs was decreed. Feeling aggrieved, the appellant filed civil first appeal under Section 96 CPC, inter alia, questioning the judgment and decree passed by the trial court.;