M B JHUNJHUNU Vs. PRAHLAD RAM

JUDGEMENT

(1.) The instant second appeal has been preferred by the defendant-appellants under Section 100 CPC against the judgment and decree dated 19.8.1996 passed by Additional District Judge, Jhunjhunu (hereinafter referred to 'First Appellate Court') in Appeal No.1/1996 (13/1995), whereby the learned First Appellate Court allowed the appeal filed by the plaintiff-respondent and reversed the judgment and decree dated 28.4.1995 passed by Civil Judge (Jr.Division) & Judicial Magistrate, Jhunjhunu (hereinafter referred to 'trial Court') in Civil Suit No.91/1990, whereby the learned trial Court dismissed the suit filed by the plaintiff-respondent.

(2.) Skeletal material facts necessary for disposal of the appeal are that a suit was filed by the plaintiff-respondent for permanent injunction to restrain the defendant-appellants not to cause any hindrance in construction of boundary wall of his 'Bada' (plot) stating therein that the plaintiff is owner of the 'Bada' mentioned in Para No.1 of the plaint and the 'Bada' is in his possession. The plaintiff purchased the plot in Samvat 2004 from 'Thikana Balonda' and a 'Patta' was issued in his favour. It is also pleaded that a case under Section 145 of Cr.P.C. with regard to the property in dispute was decided by SDM, Jhunjhunu on 6.4.1961 in favour of the plaintiff. The plaintiff is in possession of the 'Bada' for a long time and it is surrounded by fencing. It is also pleaded that to construct a 'pucca' boundary wall, the plaintiff submitted an application to the defendants for permission with requisite site plans but the permission has not been accorded to him for seven months. Thereafter, the plaintiff served a notice on 24.8.1990 on the defendants to accord permission within 15 days, failing which he will start the construction. The plaintiff started construction on 20.9.1990. Then some persons of defendants came to the spot and restrained the plaintiff for putting the boundary wall of the 'Bada'.

(3.) The defendant-appellants filed written statement stating therein that the plaintiff had no right, title or interest in the said piece of land and it is property of Municipal board and the plaintiff had no right to carry out any construction on the property of Municipal Board. It is also averred that after inspection of the site, the application for permission for construction of boundary wall has been rejected by the Municipal Board vide order dated 27.8.1990. It is further averred that the suit is not maintainable, as no notice under Section 80 CPC and Section 271 of Rajasthan Municipalities Act was served and prayed to dismiss the suit with cost. On basis of the pleadings of the parties, the learned trial Court framed following issues : ...[VERNACULAR TEXT OMITTED]...