Pratap Krishna Lohra, J. - (1.) APPELLANT -defendant No. 1 has preferred this second appeal under Section 100 Code of Civil Procedure, 1908 (for short, 'CPC') to challenge judgment and decree dated 19th October, 2011 passed by Additional District Judge, Sujangarh (for short, 'learned lower appellate Court'), whereby learned lower appellate Court has affirmed judgment and decree dated 08.04.2002 passed by Additional Civil Judge (Junior Division) Sujangarh (for short, 'learned trial Court') decreeing the suit of the respondent -plaintiff for declaration and permanent injunction.
(2.) RESPONDENT -plaintiff filed a suit for declaration and permanent injunction against appellant -defendant No. 1, Municipal Board, Bidasar and Smt. Durga Devi. During pendency of the suit, Smt. Durga Devi expired and therefore, her name was deleted. It is averred in the plaint that the plaintiff purchased a shop from appellant -defendant on 01.12.1992. It is also averred in the plaint that one narrow lane goes towards main market and appellant -defendant No. 1 and his mother are making construction illegally over the lane. It is further averred in the plaint that initially Municipal Board has initiated proceedings against appellant -defendant but, thereafter, on an application filed by the appellant, Municipal Board has taken decision to issue patta for the land in question in favour of appellant and has sent the matter to SDO for its approval. The respondent -plaintiff has pleaded in the plaint that if defendant will make construction illegally then her right of way, light and air will be adversely affected. With these pleadings respondent -plaintiff has prayed to declare the order of Municipal Board dated 12.08.1994 as illegal and void. The respondent -plaintiff also prayed for permanent injunction against the appellant. The appellant -defendant No. 1 and respondent -Municipal Board have filed separate written statements and denied the averments contained in the plaint. The Municipal Board, in the return, has pleaded that the land in question is not a public way and it is a Kanchha (strip of land) which is used only by appellant -defendant No. 1. It is also averred that on 15.07.1994 appellant -defendant No. 1 filed an application before the Municipal Board to sale/allot the land in question to him. On the said application, the Municipal Board, in its meeting dated 29.07.1994, constituted a committee and, on the recommendation of the committee dated 12.08.1994, sent the file to SDO for its approval to sale/allot the land in question to appellant. The Municipal Board, in its return, has specifically pleaded that there is no illegality or irregularity because there is a provision of allotment of kachha (strip of land) to a person, who uses the kachha (strip of land) and, as per the law, decision was taken for sending the file to SDO for its approval. It is also averred that the plaintiff has no legal right over the land in question. It is also averred that the SDO is a necessary party, but the plaintiff has not arrayed it as party -defendant, therefore, the suit is not maintainable on the ground of non -joinder of necessary party.
(3.) APPELLANT -defendant No. 1, in its return, has pleaded that sale -deed dated 01.12.1992 was got corrected by executing a correction document and got registered the same and this fact is known to the plaintiff. It is also averred in the written statement that boundaries of the shop, which was sold to the plaintiff, were corrected by the correction deed. It is also pleaded, in the written statement, that when the shop was sold to the plaintiff, there was only a small window and ventilator in the eastern side of the shop and it was agreed orally between the parties that appellant -defendant will close the said window and ventilator. In the return, it is further averred that the Municipal Board, after making detailed inquiry, has taken decision to sale the kanchha (strip of land) to the appellant. It is further pleaded, in the return, that the plaintiff could have challenged the order of SDO by way of filing an appeal before the District Collector, but he did not do so, therefore, the order has attained finality. Appellant, therefore, craved that the suit is not maintainable and merits dismissal.;