- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 21.09.2011 passed by Additional District Judge, Churu, whereby, the appeal filed by the appellants against the judgment and decree dated 07.03.2006 passed by Civil Judge (Junior Division), Churu decreeing the suit filed by the respondents for permanent and mandatory injunction, has been rejected.
(2.) THE facts in brief may be noticed thus : the respondent Nos.1 to 7 filed a suit on 06.11.1997 against Shubh Karan, Navratan Chotiya and Municipality, Churu seeking mandatory and permanent injunction in respect of a public street as indicated in the map annexed with the plaint seeking removal of encroachment and obstruction alongwith stone slabs and injunction from further obstructing the street and from alienating or transferring the same; it was, inter alia, averred in the plaint that in Ward No.28, Churu in front of Shyam Ji Temple there is a 8 ft. wide public street from east to west in existence for about 60 years, which connects the parallel roads from north to south and plaintiffs are using the said public street; plaintiff Nos.1, 3 and 6 have their plots around the said street and have openings on the said street; the defendant Nos.1 and 2 Shubh Karan and Navratan have placed stone slabs on the said street to the extent of their plot and have closed the way, whereas, in their sale deed way has been shown on the northern side; in all the sale deeds relating to the plots around the said public street, there is a mention of public street; when the said Shubh Karan and Navratan were told to remove the same, they threatened criminal proceedings; it was claimed that the public street is essentially for the enjoyment of the plots. Alongwith the suit application under Section 91 CPC was filed seeking leave of the Court for instituting the said suit. The permission was granted by the trial court on 07.11.1997 and whereafter procedure under Order I, Rule 8 CPC was adopted and public notice was issued. In pursuance thereto, respondent No.8 Jagdish Prashad and respondent No.9 Prem Ratan got themselves impleaded as plaintiffs.
(3.) ANOTHER application under Section 271 of the Rajasthan Municipalities Act, 1959 ('the Act of 1959') was filed seeking dispensing with the prior notice, as Municipality, Churu was also impleaded as a party, which application was also allowed by order dated 07.11.1997.;