VINEET KOTHARI, J. - (1.) THE appellant/plaintiff, Himmataram S/o Pannalal, who lost the legal battle before the two courts below, has preferred this second appeal against the judgment and decree dated 27.11.2012 passed by learned Additional District Judge, (Fast Track), No.2, Jodhpur Metro, whereby the first appeal filed by the appellant/plaintiff (Civil Appeal No.21/2012 -Himmataram Vs. Sarpanch, Gram Panchayat, Tinwari), was dismissed while affirming the judgment and decree dated 05.08.2010 passed by learned Civil Judge (Jr. Division), Osiya, Jodhpur, whereby the suit filed by the appellant/plaintiff being Civil Original Suit No.02/2001 - Himmataram Vs. Sarpanch, Gram Panchayat, Tinwari, for mandatory and and permanent injunction, was dismissed.
(2.) THE appellant/plaintiff filed a suit for declaration and permanent injunction against the respondent/defendant with the averments that he is in possession of plot situated at "Mathania" Circle towards "Balarwa Road" since the time of his forefathers and he is residing on the said plot with his family. Boundary wall has been constructed on the plot of land. It has been also averred that in the village many persons are not having "Patta" but they are in possession of their respective plots. In the year 1990 on account of political vengeance, a false complaint was lodged against the appellant/plaintiff by one Jawarilal Nai, which complaint after enquiry was found to be false and the proceedings were also dropped. The appellant though applied for grant of "Patta" before the Gram Panchayat, however, the same was not issued and a notice dated 28.08.2000 under Section 109 of the Rajasthan Panchayati Raj Act was issued to the appellant/plaintiff. The respondent/defendant, Gram Panchayat threatened the appellant to dispossess from the land in question. The appellant/plaintiff, therefore, filed the present suit for mandatory and permanent injunction against the respondent/defendant.
(3.) THE suit was contested by the respondent/defendant, Gram Panchayat, by filing written statement while denying the facts averred in the suit. In the written statement, it was asserted that after issuing notice the encroachment made by the appellant/plaintiff, which he made by putting stones, was removed, however, he again made encroachment over the plot in question. On 24.06.2002 a resolution of the Gram Panchayat was also passed to remove the illegal possession of the plaintiff. The appellant was having other ancestral house in the village at 'Raon -Ka -Bas', and with a view to grab the valuable land, he encroached over the land of Gram Panchayat. 2. The learned trial court vide judgment and decree dated 05.08.2010 dismissed the suit filed by the appellant/plaintiff in the following manner (relevant portion is quoted): - 3. The first appeal filed by the appellants/plaintiff against the judgment and decree of the learned trial court also came to be dismissed by the learned first appellate court of Additional District Judge, (Fast Track) No.2, Jodhpur Metro, vide judgment and decree dated 27.11.2012 in the following manner: - Having heard the learned counsel for the parties, and having perused the concurrent judgments and decrees passed by both the courts below, this Court is of the considered opinion that no substantial question of law arises in the present second appeal under Section 100 of the Code of Civil Procedure, 1908 and the present second appeal deserves dismissal. Both the courts below after discussing the relevant evidence led by the parties have rightly and concurrently rejected the suit filed by the appellant/plaintiff. The appellant/plaintiff has miserably failed to prove that he was in possession over the plot of land for last fifty years with any semblance of right, title or interest therein. A resolution was also passed by the Gram Panchayat for removal of encroachment made by the appellant/plaintiff, thus the plea sought to be raised by the appellant that the he was sought to be dispossessed without following the due process of law, is absolutely a vague and baseless plea. The appellant/plaintiff was dispossessed from the disputed plot twice, however, he again made encroachment over the plot of land and claimed decree of mandatory of permanent injunction against the defendant/ respondent, Gram Panchayat. There is no equity also in favour of the plaintiff/appellant and encroachments on public land cannot be encouraged or countenanced by giving any protection of law on misplaced sympathy either. The scope of second appeal under Section 100 CPC is limited.;