- (1.) THIS appeal is directed against the judgment and decree dated 02.07.2013 passed by District Judge, Rajsamand, whereby, the appeal filed by the appellant has been partly allowed against the judgment and decree dated 19.11.2012 passed by Civil Judge (Senior Division), Rajsamand.
(2.) THE facts in brief may be noticed thus : the plaintiff Trust filed a suit for permanent and mandatory injunction and prayed that the boundary wall surrounding their property and any construction raised in future be not obstructed and trespassed and the wall be not demolished and status quo be maintained. It was, inter alia, averred in the plaint that near Kankroli Bus Stand Araji Nos.451 to 421 and 423, 424 admeasuring 27.3 Bighas are situated, regarding which, acquisition proceedings were initiated, which were challenged before the Hon'ble Rajasthan High Court; on 12.04.1994 a settlement was arrived at between representatives of plaintiff and defendant under the Chairmanship of District Collector for transfer of 7 Bigha land for Rs.50,000/ - and permit 50 ft. road, which was approved by Dy. Secretary, pursuant to which, 7 bighas land was given to the defendants and from Kamal Talai to Station Road 50 ft. road was left, regarding which, an agreement dated 28.02.2004 was executed between the parties; on 05.04.2010 a notice was given by defendants to the plaintiff directing to remove the part of the wall constructed at Vithal Vilas Bag claiming the same to be encroachment and threatening to demolish the same in case the same was not removed; the notice was replied on 06.04.2010 and title of the land was claimed; it was claimed that the notice was illegal after giving land admeasuring 7 bighas to the defendants in public interest, the rest of the land has been secured by constructing stone wall.
(3.) A written statement was filed by the appellant -defendant that the plaintiff would be required to seek permission before raising construction and would be permitted to raise construction according to the permission granted; the Board acts in public interest and the plaintiff has no right to obstruct public way; agreement entered into between the parties dated 28.02.2004 indicates the road, which has been blocked by the plaintiff, regarding which, it has no right. 4. The trial court framed two issues and after evidence was led by the parties, essentially based on the statement of DW -1 the Commissioner, Municipal Board, Rajsamand that both the parties were utilizing the land belonging to them and as per agreement they were in possession and the way/road was functional and, consequently, the trial court decreed the suit and restrained the defendant from removing the boundary wall belonging to the plaintiff and directed not to obstruct in the future construction. Feeling aggrieved, the defendant Municipal Board filed first appeal.;