P.K.LOHRA, J. - (1.) Appellant-defendant has laid this second appeal under section 100 CPC to assail judgment and decree dated 4th of March 2016, passed by Addl. District Judge No. 1, Jodhpur Metropolitan (for short, 'learned first appellate Court'), whereby learned first appellate Court has affirmed judgment and decree dated 19th of May 2014, passed by Addl. Civil Judge (Jr. Div.) No. 3, Jodhpur Metropolitan (for short, 'learned trial Court'), decreeing the suit of plaintiff-respondent No. 1 for permanent and mandatory injunction.
(2.) Facts sans unnecessary details, as emerge from the record, are that plaintiff filed a suit for permanent and mandatory injunction against appellant-defendant and Municipal Corporation, Jodhpur and its Chief Executive Officer, inter-alia, stating that in the western side of his house one temple exists and in between plaintiff and first-defendant's house, there lies some open space which is just like a Chowk and is used as a way. It is further averred in the plaint that defendant encroached over the land adjacent to his house left out after the boundary of temple and has raised garage-type construction admeasuring about 10' x 12' which is being used by him to park his car. Plaintiff further averred that said encroachment has caused great hardship to the persons passing through the way. It is also the case of the plaintiff that though a representation was made to Municipal Corporation but same bore no fruitful results as such he has filed the suit with the prayer to restrain the defendant No. 1 by permanent injunction not to close the way of Chowk and create any obstruction. The plaintiff further sought direction against defendant Nos.2 and 3 not to regularize the encroachment of defendant No. 1 and to dismantle the unauthorizedly constructed garage.
(3.) Upon service of summons, appellant-defendant filed written statement to the suit and pleaded that the plaintiff has no house of his own in the vicinity of Makrana Mohalla rather he is in occupation of the property belonging to Devsthan Department and has no right to file suit in the nature of public interest. It was further pleaded that no obstruction is caused by him and a positive assertion was made that the garage was constructed by his father in his lifetime to which he has made no change, therefore, it is wrong to say that he has made any encroachment. According to the defendant, the disputed garage is very small and a car cannot be parked therein. It was contended that at the time of construction no objection was raised either by the plaintiff or anyone else and the present suit is filed just to harass him. With these pleadings, the appellant-defendant prayed to dismiss the suit.;