G.M.LODHA,J. - (1.) THIS is a defendant's second appeal against the judgment of Civil judge, Merta, affirming the judgment of Munsif -Magistrate Merta in Civil suit No. 274 of 1966.
(2.) THE plaintiffs (respondent) filed the above suit against the defendants (appellants for injunction and possession on or about 15 -7 -60 stating that he and his brother own a pitta shud plot of land in Merta Road and its measurements are from North to South 60' and from East to West 43'. He averred that its patta was issued by the former Jagirdar of Merta Road (Phalodi) on 5 -4 -43 in the name of his father Kishna and the ancestor Chhoga and that on 6 -1 -57 he was granted permission to construct by the Gram Panchayat Merta Road. It was stated that he constructed four rooms upto 43' after leaving some land in the north and the rest of the land was lying open and there were four stones on the corners. It was alleged that the defendants (appellants) encroached upon 10' to 12' land belonging to him (plaintiff) in the North East corner by digging foundations inspite of opposition. The plaintiff therefore filed the aforesaid suit for restraining the defendants appellants for making any construction on his aforesaid land and the delivery of possession of the encroached land. The plaintiff stated that the (defendants) appellants encroached on his land referred to above on 14 -7 -66 and that gave him the cause of action for filing the above suit. The appellants contested the above suit by denying the allegations of the plaint. They urged that the land in question is of their ownership and the plaintiff had no right or possession over it. They averred that they had Patta for aforesaid land from the Gram Panchayat. It was stated that the plaintiff's land extended only upto 43' from North to South and 60' from East to West and it is for that reason that the plaintiff did not raise any construction in his alleged land in the northern side. They further urged that the alleged Patta of the plaintiff was not genuine and the plaintiff had no possession or a right over the land in dispute. It was also stated that the plaintiff had himself applied for the grant of Patta and obtained Patta from the Gram Panchayat on 1 -12 -60 which clearly showed that the plaintiffs' land only extended upto 43' in the north and not upto the railway boundary. The defendant also contended that even according to the measurements given in the body of the Patta alleged to have been issued by the Thakur of the Merta Road the land of the plaintiff did not extend beyond 43' in the North. It was urged that the Thakur had no authority to grant any Patta and the alleged Patta appeared to have been manipulated after the Presumption of his Jagir.
(3.) ON the aforesaid pleadings, the Munsif -Magistrate, Merta, framed as any as 8 issues. After recording the evidence of the parties the Munsif -Magistrate, decreed the suit of the plaintiff with costs and directed that the defendant should return the land measuring 13' x 9' by removing his construction thereon to the plaintiff and the defendants were further restrained from raising any construction on the aforesaid land of the plaintiff. The aforesaid decree was passed on 23 -12 -69. Feeling dissatisfied with it, the appellants filed an appeal, which was heard by the Civil Judge, Merta. The Civil Judge, Merta by his judgment dated 12 -12 -72 dismissed the appeal of the defendants and affirmed the decree of the Munsif Magistrate with costs.;