- (1.) The appellant is aggrieved against the judgment and decree dated 28.3.1984 by which the first appellate court allowed the appeal of the plaintiffs-respondents and reversed the dismissal of the suit of the plaintiffs which was dismissed by the trial court by judgment and decree dated 8.3.1983.
(2.) Brief facts of the case are that the plaintiffs filed the suit for permanent injunction against the defendant-appellant with allegations that in the town of Nimboj, Tehsil Jaitaran, a Digambar Jain Temple is situated which is very old one. The pilgrims in large number used to visit this temple through the way situated near the temple. There is also one big chowk near the temple, which is also used for various religious functions. Near this way, the house of the defendants is situated. The defendant number 1 to 3 encroached upon part of the land of the way on 9.1.1974 and constructed a latrine and raised construction of a platform (Chabutara). They put some stones. By this, the width of the way 20' has been reduced to 9' for some area of the total way. The plaintiffs sought declaration that the said land may be declared as public way and public chowk and the pilgrims of the temple have right to use the way to its full width. The plaintiffs also sought decree for mandatory injunction of removal of the encroachment. The plaintiffs submitted the sketch-map with measurement along with the plaint.
(3.) The defendants denied the plaint allegations about the defendants' encroachment over the land. According to the defendants, the land in question is Patta-sud land of defendants no.1 to 3 and is in possession of defendants no.1 to 3. It is submitted that the way is not 20' wide and it is narrow at some place. The defendants pleaded that Patta of the defendants is dated 17.10.1951. The trial court while deciding issue no.1 held that the suit land is covered by the Patta produced by the defendant, however, the trial court held that the construction was not raised in April, 1974 as alleged by the plaintiffs but was raised in the year 1973.The trial court dismissed the suit of the plaintiffs but the appellate court after looking to the facts relating to issuance of Patta held that in case Patta is issued on the basis of the old possession, then the old possession may be relevant but when one claims possession on the basis of Patta then he can claim possession of the land to the extent of measurement in the Patta. It will be sufficient to mention here that the first appellate court has some doubt about the area falling within the area given in the Patta but apart from that fact, the first appellate court reached to the conclusion that the land in question is used by the public for religious activities and the land is dedicated for public purpose. The first appellate court, therefore,set aside the judgment and decree of the trial court and decreed the suit of the plaintiffs and granted mandatory injunction. Hence this appeal.;