Pratap Krishna Lohra, J. - (1.) APPELLANTS /plaintiffs have laid this second appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'CPC') assailing the impugned judgment and decree dated 15th of October 2008, passed by learned District Judge, Pali (for short, 'learned First Appellate Court') in Civil Appeal Decree No. 13/2007, preferred by them against dismissal of their Civil Original Suit No. 87/2005 vide judgment and decree dated 01.02.2007 passed by Civil Judge (Jr.Div.), Pali (for short, 'learned trial Court').
(2.) SUCCINCTLY stated, the facts of the case are that appellants -plaintiffs laid a suit for permanent injunction to restrain the respondents -defendants from interfering with their land of Plot No. 11 situated in Nehru Nagar, Pali, purchased by their father Shri Manak Chand from Pali Municipal Board through registered sale -deed on 10.05.1965. It is averred in the plaint that on the said plot purchased by their father, a house was constructed in the year 1966 after obtaining permission from Municipality, however, later on it revealed that some portion of adjoining plot No. 21 was also included in the permission granted by the Municipality for construction and as such house so constructed was overlapping on the part of adjoining plot. In such a situation, at the request of appellants' father, Municipality sold that overlapping part of land to their father through a registered sale -deed executed in respect of 20'x40' land of plot No. 21 utilized by their father ignorantly and regularized the construction so raised thereon and thereafter rest of the land of Plot No. 21 was sold by the Municipal Board to one Kewalchand, who was already having the adjoining Plot No. 20 purchased by him from the Municipal Board through registered sale -deed dated 10.05.1965. It is also averred that Municipal Board sold Plot No. 12 to one Bhanwarlal through registered sale -deed dated 27.01.1967 and possession thereof was handed over to him, who in turn sold that plot to Manak Chand, father of appellants through registered sale -deed on 01.04.1967 and handed over its possession but later on their father sold land of that plot to respondent -defendant M/s. Ganesh Mal Ram Kishore on 20.04.1967 through registered sale -deed and handed over its possession. The appellants, in their plaint, have come up with the case that respondent -defendant No. 1 M/s. Ganesh Mal Ram Kishore on 10.07.2005 tried to interfere with their possession on land of Plot No. 11 which was lying vacant and as such they were constrained to file suit for perpetual injunction against respondents -defendants to restrain them from interfering with the land of Plot No. 11 belonging to them. The suit was contested by respondent -defendant No. 1 by filing written statement denying the averments contained in the plaint. In the counter, the respondent -defendant No. 1 pleaded that in the southern side of Plot No. 11 no land was lying vacant and no part of Plot No. 11 was ever vacant rather the construction on the whole plot measuring 40'x60' was raised by the plaintiffs. It was specifically averred that no window projects from Plot No. 11. The respondent -defendant admitted sale of plot No. 12 by Bhanwarlal to Manak Chand, father of appellants and thereafter its sale to it by Shri Manak Chand. Further, it was admitted that no construction was ever raised on Plot No. 12, rather pucca boundary wall existed there with gate. Respondent -defendant No. 1 denied fraudulent intention of encroaching over 20' x 40' southern side land of Plot No. 11 and taken the stand that it has no connection at all with the land of Plot No. 11. Respondent -defendant No. 1 firm, while affirming the size of Plot No. 12 to be 40' x 60', denied availability of 20' x 40' pattasud land of appellants -plaintiffs towards southern side of their Plot No. 11. An objection was raised with regard to non -serving of notice under Section 271 of the Municipal Act and it was pleaded that in case the appellants -plaintiffs had any objection, they could file appeal, which was an alternative remedy available to them, but as they have failed to avail that remedy, discretionary relief of injunction cannot be granted to them. The respondent -defendant No. 1 also stated in its return that in the year 1993 appellants -plaintiffs tried to encroach over the land of Plot No. 12 claiming it to be part of their Plot No. 11 and consequent thereto proceedings were initiated under Section 145 CPC and the District Magistrate concluded that the house of appellants -plaintiffs is constructed on Plot No. 11 and in its southern side Plot No. 12 is of the ownership of respondent -defendant No. 1, as such, only the respondent -defendant No. 1 is entitled to get its possession. The respondent -defendant brought to the notice of the trial Court that revision petition filed against that order has already been rejected and prayed for dismissal of the suit.
(3.) RESPONDENT -defendant No. 2 Municipal Council, Pali also submitted its written statement and admitted the factum of purchasing Plot No. 12 by father of appellants -plaintiffs from Bhanwarlal, and thereafter selling and handing over its possession to respondent -defendant No. 1. In connection with Plot No. 12, it is stated that on the spot situation of the said plot remains as it is. It was contended that the appellants -plaintiffs have no right to file a suit claiming the land of Plot No. 12 to be of their ownership. Municipal Council in its reply clarified that no additional land in between Plot No. 11 & 12 lies as per Master Plan and both the plots are of equal dimensions with size of 40' x 60' and that on Plot No. 11 house has already been constructed. According to respondent Municipal Council, at the time of seeking permission to raise construction on Plot No. 11, father of appellants -plaintiffs, mistakenly shown size of plot towards eastern side as 60 ft, whereas as per Master Plan the size of Plot No. 11 towards eastern side ought to have been shown as 40 ft. It was the case of respondent Municipal Council that permission for construction on Plot No. 11 was granted as per Master Plan and accordingly construction was raised, however, it is stated that Manak Chand was allotted 20 ft additional land perhaps treating it to be a strip of land of Plot No. 11 and denied that any part of Plot No. 11 lies in Plot No. 12. The respondent Municipal Council also raised objection about not serving notice under Section 271 and craved for dismissal of the suit.;