Dr. Vineet Kothari, J. - (1.) THE appellants/plaintiffs, Babarmal and others, have preferred the present second appeal against the defendants, legal representatives of late Sh. Mithulal, aggrieved by the reversal of findings by the first appellate Court of Additional District Judge, Nimbahera, District Chittorgarh, and rejection of suit allowing the defendant's appeal being Appeal No. 25/09 vide judgment and decree dt. 06.10.2012. The learned trial Court of Civil Judge (Jr. Division) Mandfiya, had decreed the appellants/plaintiffs' suit, namely, Civil Original Suit No. 2/2008 - Babarmal & Ors. v. LR's of Mithu Lal & Anr. vide judgment and decree dt. 13.10.2009 in the following manner: - - The first appellate Court below while reversing the said findings found in para 18 that between the two plots of land claimed by the plaintiffs, there was a public way on which the Gram Panchayat, Bhadsoda, had constructed a road and the defendants' house is situated across that road on the opposite side and since the plaintiffs did not claim any compensation or his rights over the said land against the Gram Panchayat, therefore, they cannot claim mandatory injunction against the defendants for closing his door opened on that road and also remove the "Chabutari" made outside his house. The relevant Para 18 and operative portion vide Para 22 are also quoted herein below: - -
(2.) MR . S.L. Jain, learned counsel for the appellants/plaintiffs vehemently argued that the Patta issued in favour of plaintiffs in the year 1940 clearly showed two portions of the plots given to the plaintiffs and, therefore, defendant's house which was adjacent to the plot of plaintiffs, could not encroach upon the land of plaintiffs and open door on that side. He, therefore, submitted that the first appellate Court has erred in assuming that second plot of land was not belonging to the plaintiffs and defendants had a right to open door on the said side of the plot of land assuming to be a public road. On the other hand, Mr. Rajesh Choudhary, learned counsel for the respondents/defendants, during the course of arguments, has produced a certificate issued by the Gram Panchayat, Bhadsoda, Chittorgarh, dt. 16.09.2012 along -with the photograph of the site in question, which prima facie even indicates that a road which is opposite the defendants' house is quite wide much more than six and half feet, as claimed in the map (blue print) produced for perusal by Mr. S.L. Jain. The certificate produced along -with photograph is taken on record. A close and bare perusal of the said map also reveal that the land is situated just opposite the defendants' house, mentions a stipulation that . This map purportedly made in the year 1940 is attached with Patta issued in favour of plaintiff clearly shows that land in the erstwhile period belonged to the plaintiffs and no Patta was issued for that portion of the land. The fact that the plaintiffs also did not claim any compensation from the Gram Panchayat for constructing the road over his own plot of land, also prima facie shows that the plaintiffs never claimed any ownership or right over the said disputed portion of land and the defendant's house is situated just across the road, on the opposite side. Therefore, the appellate Court below appears to be justified in reversing the judgment and decree of the learned trial Court and has rightly refused to grant injunction as prayed by the plaintiffs and dismissing the suit.
(3.) THIS Court is, therefore, of the opinion that no substantial question of law arises in the present second appeal filed by the appellants/plaintiffs requiring consideration by this Court under Sec. 100 of Code of Civil Procedure, 1908. Consequently, the present second appeal filed by the appellants/plaintiffs is found to be devoid of any merit, and the same is hereby dismissed. No costs. A copy of this judgment be sent to the concerned parties and the Courts below forthwith.;