RAMCHANDRA SINGH JHALA, J. - (1.) This second appeal has been filed by the appellant-defendants against the judgment and decree dated 22.11.2005 passed by learned District Judge, Sirohi in Civil Appeal No.29/99 whereby the first appeal preferred by the appellant-defendants against the judgment and decree dated 30.7.1999 in Civil Original Suit No.65/93 was dismissed and the decree passed by the learned Civil Judge (Junior Division), Sirohi has been upheld. Brief facts of the case are that the respondent-plaintiffs No.1 to 4 filed a suit for mandatory and perpetual prohibitory injunction against the appellant-defendants. The mandatory injunction was sought by the respondent-plaintiffs against the appellant-defendants for removal of their cabin installed at the disputed land claiming to be a public chowk by the respondent-plaintiffs and perpetual prohibitory injunction was sought against the defendant-Municipal Board, Sirohi not to sale and transfer the said land to any other person and not to create any obstructions on the public way. It was alleged that at the suit land the cabin of the appellant-defendants has been installed by them on some part of the public way. It is averred in the plaint that the respondent-plaintiffs are residing in their houses since 1966 and also carrying on their business. It is mentioned in the plaint that all the houses of the respondent-plaintiffs are facing towards northern side whereas the shop is facing towards market in the Western side on the main road and the chowk in dispute meets the main road of the market. It is alleged that the appellant-defendants had installed their cabin on the land which forms part of the chowk and public way and thus created obstruction in public way.
(2.) After serving notice of the suit upon the appellant-defendants, they filed written statement before the learned trial court wherein they denied all the contentions raised in the plaint. It was stated that the cabin was installed by the appellant-defendants under a licence issued by the respondent-defendant-Board and the defendants have not encroached upon any land which is claimed to be chowk or a public way by the respondent-plaintiffs. It is further averred that the appellant-defendants are carrying on their business in the cabin for last 35 years and the respondent-plaintiffs have started living much after the installation of the cabin by the appellant-defendants. It was also stated that the appellant-defendants are paying rent to the respondent-defendant-Board regularly and the land on which cabin has been installed is an open place and it does not forms part of any public way or chowk. It is also averred by the appellant-defendants that the open land claimed by the appellant-defendants to be a chowk or a public way is away from the cabin and the land where the cabin had been installed has never been a part of the way. It was stated that the respondent-plaintiffs have not been able to explain as to how after a lapse of about 35 years, all of a sudden the cabin of the defendant is creating nuisance. It was further averred that only few years back, a handpump has been installed on the open land in question which also does not create any obstruction and nobody objected to it. It was averred by the defendants that suit has been filed merely on account of the fact that towards the back of the defendants' cabin the plaintiffs were opening the ventilator about which the defendants raised objection and so as to take revenge, the suit has been filed without there being any cause of action.
(3.) A written statement was also filed on behalf of the respondent-defendant-Board wherein it was stated that the map produced by the respondent-plaintiffs showing the position of the house is correct, but the measurement shown in the map is not correct. It was stated that the respondent-plaintiffs started living in their house after the allotment of disputed land and installation of cabin by the defendants. It was stated that the open land is used as a way to the main road but the same is not part of the public road and the land which is beneath the cabin has never been used as way by the plaintiffs. It was specifically denied that the disputed chowk is a public way. It was also averred in the written statement that under the license the defendant has installed the cabin 35 years back and has not created any nuisance. It was categorically stated that the defendant Board is not intending to sell the land in question to defendants No.1 to 3.;