MAHESHWARI, J. - (1.) LEARNED counsel for the appellants has been heard on the applications moved on 14. 09. 2007 respectively under Order XXII Rule 4 & 9 read with Section 151 of the Code of Civil Procedure (CPC) (IA No. 4731/2007), under Section 5 of the Limitation Act, and under Order I Rule 10 (2) read with Section 151 CPC (IA No. 4732/2007); and learned counsel has also been heard at length on the competence of this second appeal in view of the facts as stated in the said applications, about demise of the defendants-respondents Nos. 1 and 2 during the pendency of the first appeal itself.
(2.) HAVING examined the impugned judgment and decree and having perused the copy of plaint and attached plan as placed for perusal by the learned counsel for the appellants during the course of submissions and having given a thoughtful consideration to the entire matter, this Court is clearly of opinion that this second appeal is required to be dismissed as incompetent. The relevant aspects of the matter are that the plaintiffs, appellants and the respondent No. 5, filed a suit for perpetual and mandatory injunction with the claim of easementary rights arraying Shri Bhanwar Lal son of Shri Ganpat Lal Bhargava and Shri Jagdish son of Shri Ganpat Lal Bhargava as defendants Nos. 1 and 2 respectively (respondents Nos. 1 and 2 herein); and the Administrator of the Municipal Board, Kuchaman City and the Secretary of the Municipal Board, Kuchaman City as defendants Nos. 3 and 4 respectively (respondents Nos. 3 and 4 herein ). Put in a nut-shell, the case of the plaintiffs has been that their ancestral property, comprising of house and open land, was situated in Ward No. 2 near Old Post Office at Kuchaman City and a patta was issued in the name of father of the plaintiffs and his brother from Thikana Kuchaman on 19. 02. 1936; that the said land was sold in execution of a decree obtained by Nandlal and was purchased by one Ramniwas who, in turn, sold the same to the father of the plaintiffs in Svt. Year 2011 and handed over possession. The plaintiffs annexed a plan to the plaint and submitted that the land in question was shown comprised within marks ABCD measuring 35' x 10'. The plaintiffs alleged that on the south-eastern side of the said land was situated another open piece of land marked EFGH, a portion whereof was used as way by the plaintiffs and other residents of the locality. According to the plaintiffs, starting from the eastern side marked 'v', the said way ran towards south. While stating that the defendants Nos. 1 and 2 were brothers, the plaintiff alleged that upon making of an application by the said defendants the Municipal Board regularised 38' x 32' size piece of land in their favour but their claim for regularisation of the land in dispute marked EFGH was rejected. The plaintiffs further alleged that again an application was moved by the defendant No. 2 to the Municipal Board on 16. 07. 1986 for purchasing the said land as a strip whereupon the plaintiffs raised objections that were pending; and that the defendants moved yet another application on 16. 05. 1988 whereupon again the plaintiffs have again raised objections. The plaintiffs alleged that they had asked for construction permission over their pattasud land but the Municipal Board has failed to accord the requisite permission and on the other hand, the defendants Nos. 1 and 2 were seeking to put a wall around the disputed land EFGH and the officers of the Municipal Board were also intending to issue a patta in favour of the defendants Nos. 1 and 2. Stating the cause of action to have arisen when the defendants Nos. 1 and 2 threatened to erect a wall around the land marked EFGH and expressed their intention to obtain patta from the Municipal Board, the plaintiffs filed the suit claiming the reliefs of injunction against the defendants Nos. 1 and 2 for restraining them from raising any construction on the land marked EFGH and for further restraining them from interfering with its use as a way by the plaintiffs; and for further injunction against the defendants Nos. 3 and 4 prohibiting them from issuing any document of title in favour of the defendants Nos. 1 and 2 in respect of the said land marked EFGH. The plaintiffs also claimed the relief in mandatory form that the defendants Nos. 3 and 4 should accord them permission to raise construction on their pattasud land marked ABCD. The suit so filed by the plaintiffs-appellants was put to contention on various grounds by the defendants while denying the claim of ownership of the plaintiffs on the land marked ABCD and further denying their claim of easementary right of way on the land marked EFGH. The suit was put to trial by the learned Trial Court after framing the following issues:- ***
(3.) THE learned Trial Court, after examining the oral and documentary evidence available on record, held in issue No. 1 that the plaintiffs have failed to establish if the land marked ABCD in the plan was of the same boundaries and the measurements as were stated in paragraph 3 of the plaint; and in issue No. 2 rejected the case of the plaintiffs that the land marked EFGH was used as a way; and decided issues Nos. 3 & 4 against the plaintiffs as a consequence of the findings on issues Nos. 1 and 2. Accordingly, the learned Trial Court held that the plaintiffs were not entitled for any injunction against the defendants and dismissed the suit with costs by the impugned judgment and decree dated 12. 11. 1997. The matter was taken in first appeal by the plaintiffs, being Civil Appeal (Decree) No. 82/1998 (23/1997 ). The learned First Appellate Court has endorsed the findings of the learned Trial Court on issues Nos. 1 and 2 and has also noted that no arguments were pressed on issues Nos. 3 and 4. Consequently, the learned First Appellate Court has dismissed the appeal preferred by the plaintiffs-appellants by its impugned judgment and decree dated 22. 01. 2007. Aggrieved, the appellants, plaintiffs Nos. 1 and 3 to 7, have preferred this second appeal arraying the plaintiff No. 2 Dharam Chand as proforma respondent No. 5; and the defendants Nos. 1 and 4 as respondents Nos. 1 to 4. This second appeal was admitted for consideration by this Court on 28. 03. 2007 while formulating the following substantial questions of law:-      " (1) Whether the two courts below misread and misconstrued the patta Ex. 1 and plan Ex. 2 ? (2) Whether the appellant was not given proper opportunity to lead evidence in the trial court ?" Notices sent in this appeal to the respondents Nos. 3 to 5 have been returned duly served. However, notices sent to the respondents Nos. 1 and 2 have been returned with the report of the addressees having expired. ;