- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 30.07.2011 passed by Additional District Judge No.1, Bhilwara, whereby, the appeal filed by the appellants -plaintiffs has been dismissed affirming the judgment and decree dated 10.08.2009 passed by Civil Judge (Senior Division), Gangapur.
(2.) THE facts in brief may be noticed thus: the appellants - plaintiffs filed a suit for mandatory and permanent injunction and for compensation of Rs.20,000/ - against the defendants, inter alia, with the averments that at village Pitha Ka Khera the plaintiffs have land comprising in Araji Nos. 467 and 468; for ingress and egress a old way is situated from the land of defendants comprising in Araji Nos. 478, 480 and 481, which way goes on to join the government road; the way has been indicated in the revenue record by doted lines; the plaintiffs have been using this way for a long time and the plaintiffs have no alternative way for going to their fields; the defendants have obstructed the way; on account of their such obstruction the plaintiffs have suffered loss of Rs.20,000/ -, therefore, mandatory injunction was sought seeking the defendants to remove the obstruction and seeking a decree against the defendants not to obstruct the way. A written statement was filed and it was submitted that the plaintiffs were not using the way from Araji Nos. 478 and 480 and 481 and the way to their fields was from the Abadi land of village Pitha Ka Khera, which is in existence for years which is being used by them; the disputed way has not been used by the plaintiffs; the suit has wrongly been filed; it was prayed that the suit be dismissed.
(3.) THE trial court framed eight issues; on behalf of the plaintiffs four witnesses were examined and 24 documents were exhibited; on behalf of the defendants three witnesses were examined and nine documents were exhibited. After hearing the parties, the trial court came to the conclusion that earlier the way from the defendants' field was existing as indicated in the revenue record by doted lines, however, for over 45 years after construction of metal road from Pitha Ka Khera to Raipur the said way has been closed and all the khatedars were using the said way and decided the issues in favour of the defendants and dismissed the suit filed by the plaintiffs.;