PREM NARAIN AND ORS. Vs. RAJMAL AND ORS.

JUDGEMENT

(1.) THE appellants -defendants have preferred this second appeal under Section 100 CPC against impugned judgment and decree dated 16th March 2010, passed by Addl. District & Sessions Judge (Fast Track) No. 3, Udaipur camp Salumber (learned lower appellate Court), affirming the judgment and decree dated 18th October 2008 passed by learned Civil Judge (Sr. Div.) Salumber, Udaipur (learned trial Court) whereby the suit filed by respondent -plaintiff for permanent and mandatory injunction against appellants -defendants was decreed.

(2.) THE matrix of the facts, relevant for disposal of the present appeal, as emanating from the record, are that respondent -plaintiff filed a suit against appellants -defendants for mandatory and permanent injunction for removing illegal construction inter -alia stating that the houses of plaintiff and defendants are situated in Ward No. 5 of Salumber town and for ingress and egress they have to pass through an arched gateway on a narrow lane of 4 ft constructed in the year of 2000 for the inhabitants residing inside the said gateway. According to the plaintiff, his house situate in the northern side and the main gate opens toward southern side to which approach is only from the said lane which belongs to Municipal Board. It is averred that defendant No. 1 without permission of Municipal Board and against compromise dated 21.12.1998 arrived at between them has illegally constructed latrine and bathroom measuring 7'X3.5' and defendant No. 1 to 4 have illegally raised projection in the back side of their house and thereby flouted the compromise and are causing nuisance. According to plaintiff, due to illegal structure in the south -west corner of the house of defendant No. 1 fourth feet lane has been fully covered by the projected/cantilever structure and to that extent the lane is now blocked to sky and possibility of illegal encroachments by others in future from the corner of lane has increased manifold which would lead to closure of the way of the plaintiff, therefore, illegal construction needs to be removed. It is further averred in the plaint that that plaintiff submitted an application to the Executive Officer, Municipal Board, Salumber for staying illegal construction bringing to his notice that defendants have covered the lane which is the only way of approach to the plaintiff's house but of no avail. Prayer was made in the suit for issuing mandatory and permanent injunction to remove illegal construction made in the lane and by issuing mandatory and permanent injunction the Municipal Board be directed to remove illegal construction raised in the lane and the defendants be bound not to cover the lane in question and also not to create any nuisance.

(3.) MUNICIPAL Board, respondent -defendant No. 5 also filed written statement admitting the houses of plaintiff and defendants in Salumber at the pointed place and their approach through the arched gateway, however, while denying its ownership on the lane, it is averred that the lane belongs to the people residing inside the arched gateway, as such, its permission is not required. Defendant -respondent No. 5 also averred that it had no knowledge about the compromise but when the application was submitted by plaintiff for staying illegal construction then notice was given to the defendants, who in reply denied having made any construction and taken the plea of renovating old house. The stand of the Municipal Board was that as the lane does not belong to it, it has no jurisdiction interfere in the matter, and sought dismissal of suit with costs.