RAMCHANDRA SINGH JHALA,J. - (1.) This second appeal has been filed against the judgment and decree dated 21.8.2010 passed by learned District Judge, Chittorgarh (hereinafter referred to as 'the appellate court') in Civil First Appeal No. 39/2010 whereby the judgment and decree dated 22.5.2010 passed by learned Additional Civil Judge (Senior Division) No. 1, Chittorgarh (hereinafter referred to as 'the trial court') in Civil Original Suit No. 21/2007 was set aside.
(2.) Briefly stated facts of the case which are necessary for disposal of this appeal are that the respondent-plaintiff filed a suit for possession of a particular part of plot where appellant-department constructed the room and set up a tube well. It was pleaded in the plaint that he purchased a plot No. 216 from Municipal Corporation, Chittorgarh in the year 1979. The appellant-defendants on survey found that there was ground water below the said plot and they requested the respondent-plaintiff to allow them to set up a tube well on the said plot for water supply in the locality for which the respondent-plaintiff allowed. Thereafter the respondent-plaintiff felt necessary to raise construction of a room for his son and requested the appellant-defendants to remove the tube well etc. and hand over the entire possession but appellant-defendant denied then he gave a notice under Section 80 C.P.C. Thereafter also the respondent-plaintiff prayed to remove the said tube well and room, but in vain. Thus, the respondent-plaintiff filed the suit against the appellant-defendants.
(3.) The written statements were filed by the appellant-defendants wherein all the facts of the plaint were denied by them and stated that no consent was taken by the appellant-defendants from the respondent-plaintiff and the tube well was main source of water supply to the nearby locality. They also stated that setting up of tube well and construction of room was made according to permission of Municipal Board's officer.;