Dr. Vineet Kothari, J. - (1.) THE present second appeal filed by Dev Raj Mehta since expired on 02.06.2003 during pendency of this appeal and now represented by his legal representatives Smt. Raj Kumari Mehta and others, arises out of the judgment and decree of the first Appellate Court of Additional District Judge No. 3, Jodhpur dated 15.04.1996 allowing the appeal of the respondent Municipal Corporation, Jodhpur namely Appeal No. 8/1996: Municipal Corporation, Jodhpur Vs. Dev Raj s/o Daulat Raj in the present suit for injunction filed by plaintiff Dev Raj Mehta, which suit No. 444/1993: Dev Raj s/o Daulat Raj vs. Municipal Corporation, Jodhpur was decreed by the learned trial Court of Additional Civil Judge (Jr. Division) and Judicial Magistrate, First Class, No. 1 Jodhpur on 15.12.1995.
(2.) THE facts leading to the present second appeal under Section 100 CPC in a nutshell are as under: - There was a pattasud land of 3840 sq.yards of one Jailal Pancholi which was purchased by the plaintiff Dev Raj Mehta under the registered sale deed on 17.02.1946. Out of the said 3840 sq.yards of land situated at Sardarpura, Jodhpur, 324 sq.yards of land was given by way of gift in favour of Mst. Soni Bai by the plaintiff. From the remaining 3516 sq.yards of land, the State Government in the year 1948 took and used 829 sq.yards of land for constructing a 'Nalla' (drain) for drainage of rainy water and in lieu of said 829 sq.yards of land used by the State for constructing said Nalla, in exchange the State Government allotted 650 sq.yards of land on 25.06.1949 and 163.3 sq.yards of land on 23.12.1964 in favour of the plaintiff and thus, the plaintiff came to own and in possession of 3500.3 sq.yards of land [3516 - 829 = 2687 + 813.3 (650 + 163.3) = 3500.3 sq.yards of land]. When the Municipal Corporation, Jodhpur after its incorporation under Rajasthan Municipalities Act, 1959 sought to interfere with the peaceful possession of the plaintiff on the said 91 sq.yards of land [920 - 829 = 91], which land was not used by the State Government for construction of 'Nalla', the plaintiff filed the present suit for injunction, and the defendant Municipal Corporation, Jodhpur though filed a written statement, did not adduce any evidence before the Trial Court.
(3.) THE learned trial Court decreed the suit on 15.12.1995 by returning the following findings of facts which are quoted below for ready reference: - ;