Arun Bhansali, J. - (1.) THIS second appeal under Section 100 CPC is directed against the judgment and decree dated 27.4.2005 passed by the Additional Civil Judge (Jr. Div.), Chittorgarh and the appellate judgment and decree dated 29.8.2013 passed by Additional District Judge No. 1, Chittorgarh, whereby the suit filed by the respondent has been decreed by the trial court and the appeal filed by the appellant herein has been dismissed.
(2.) THE facts in brief may be noticed thus: the respondent -plaintiff filed a suit, inter -alia with the averments that the land situated at Gandhi Circle is owned and possessed by him, hospital and commercial shops have been situated on the said land, construction is going on the commercially converted plot, land was converted first by order dated 13.12.1976 and later on, by order dated 30.5.1986. It was claimed that the application was filed by the plaintiff on 30.8.2003 seeking permission for raising construction on plot ad measuring 36.6 ft. x 77 ft. and fee was deposited. Despite passage of three months, the map was not approved and therefore, on 19.11.2003 an application was given to the defendant and whereafter a notice dated 1.1.2004 was given inter -alia indicating that as per Rules after giving 15 days' notice, construction work can be started under deemed permission. The plaintiff started construction after 1.1.2004, whereafter shops have been constructed and finishing work is going on. The defendant is interfering in the construction work and threatening the plaintiff, though no notice has been issued. It was prayed that the defendant be restrained by way of permanent injunction not to interfere with the work of the plaintiff and if any action is taken during the pendency of the suit by way of mandatory injunction, the plaintiff may be permitted to raise construction. A written statement was filed by the defendant disputing the claim of the plaintiff. It was claimed that after application dated 30.8.2003 was filed, notice seeking objection was issued on 3.9.2003 and technical report was submitted by the Junior Engineer on 10.9.2003 indicating that if the construction takes place 60 ft. away from the centre of the road, there was no objection, whereafter the grant of permission is under consideration. The plaintiff is not entitled to treat the notice dated 1.1.2004 as notice under Section 170(8) of the Rajasthan Municipalities Act ('the Act'). The right of the plaintiff to claim injunction was also disputed.
(3.) THE trial court framed as many as five issues and after evidence were led by the parties, it came to the conclusion that the application was made on 30.8.2003 seeking permission for raising construction; on 19.11.2003, notice was issued to the Municipality, whereafter again notice dated 1.1.2004 was issued indicating that the plaintiff would be free to raise construction, which notice was received by the defendant, however, no action was taken and therefore, the plaintiff was justified in raising construction under deemed permission and consequently, decreed the suit filed by the plaintiff.;