- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 21.05.2005 passed by Additional District Judge, Churu, whereby, judgment and decree dated 03.12.2004 passed by Civil Judge (Junior Division), Churu has been upheld. The facts in brief may be noticed thus: the appellant - plaintiff filed a suit for declaration and permanent injunction against the respondent Bal Krishan Bagla with the averments that a institution in the name of 'Shri Oswal Srisangh Panchayat, Churu' has been constituted and its property named Oswal Panchayat Bhawan is situated at Ward No.18, Main Market, Churu, which is being managed by the said institution and its duly appointed President and Manager was Vijay Singh; for purchasing the Panchayat Bhawan, an agreement dated 19.09.1941 was executed with Sheodev Lohiya S/o Ram Lal Lohiya and, in pursuance thereof, a sale deed dated 03.10.1941 was executed and subsequently Patta dated 27.04.1953 was issued by Commissioner, Bikaner in the name of the Panchayat; the gate of the Panchayat Bhawan is on the southern side and on its northern side Sheodev Lohiya's Nohara and on eastern side of the said Nohara there is a Chawk, which is still a Chawk; land of the Chawk is part of Patta of Sheodev Lohiya and he was the owner thereof; Mahaveer Prashad Lohiya heir of Sheodev Lohiya etc. are sole owners and are in possession; vide agreement dated 19.09.1941 Sheodev Lohiya agreed that from the Chawk situated on the eastern side of the Nohara a 10 Yard wide and 43 Yard 14 Anna long way was provided to the owners of Panchayat Bhawan for ingress and egress and in pursuance of the agreement only, the sale deed was executed and whereafter the way was being used regularly; it was claimed that except for the heir of Sheodev Lohiya and for ingress and egress of the Panchayat Bhawan the land of the Chawk cannot be utilized by anyone; the Haveli of the defendant was situated along the said way and as the land belongs to Sheodev Lohiya none of the gates, windows etc. are existing on the said way; earlier the father of the defendant opened outlet on the said way, which was closed and an agreement was entered into between the parties; it was alleged that the defendant was seeking to construct shops on the way by demolishing a part of his wall adjacent to the way and for which he has got prepared two iron shutters and has placed the same on night intervening 23rd & 24th August, 1986 and tried to open the way; the defendant was told not to do the same; however, when the defendant did not stop the illegal activity a stay was obtained from the Municipality, Churu; no permission under the Municipalities Act was obtained, it was alleged that by construction of the shop, the way leading to the guest house would be closed and, therefore, it was prayed that the defendant is not entitled to open any gate, window or construct any shop and permanent injunction was sought in this regard.
(2.) A written statement was filed by the defendant; it was, inter alia, indicated that the institution was not registered at the time of filing of the suit and, therefore, the suit was not maintainable; there is no Patta in the name of Panchayat; the land in question is of public way and even if the same was owned by Sheodev Lohiya, as the same remained in public use for 60 - 70 years, the same is now public way; there are several shops in the Chawk and a Pyau; the map produced was disputed; the construction has been done after seeking permission from the Municipality, against which, appeal was filed before Additional Collector, Churu, which was rejected, whereafter the suit has been filed; the plaintiff does not have any right regarding the said public way and the way is not affected as no construction has taken place on the land of the way; objections about pecuniary jurisdiction were also raised. The trial court framed seven issues; on behalf of the plaintiff ­ two witnesses were examined; however, as the cross - examination of PW -2 remained inconclusive and he died, the same was held as inadmissible; certain documents were produced, from which, document Exhibit -1 was impounded; on behalf of the defendant six witnesses were examined and five documents were exhibited.
(3.) AFTER hearing the parties, the trial court came to the conclusion that the plaintiff failed to prove the way to be its personal and the way was found to be a public way and the plaintiff was not entitled to stop anyone from opening window, gate ect. thereon; the plaintiff was not entitled for removal of the shutter; the suit was maintainable without seeking declaration about ownership; the suit was maintainable despite the institution not being registered at the time of filing of the suit; the objection relating to pecuniary jurisdiction was decided against the defendant and ultimately the trial court dismissed the suit.;