ALL GRAMWASI OF FATEHNAGAR NAGARPALIKA Vs. NAGARPALIKA FATEHNAGAR

JUDGEMENT

(1.) This revision petition has been directed against the order passed by Additional District Judge No. 1, Udaipur in Civil Misc. Appeal No. 52/93 per which he upheld the order of Munsif, Mavli in Civil Misc. Case No. 141/92.

(2.) 20 plaintiffs filed a civil suit against defendants. Respondent No. 1 and Respondent No. 2 before the Munsif Mavli to the effect that the Higher Secondary School is situated in Fatehnagar and its main gate opens on Udaipur Chittaur Road. There were three different side ways each one being about 30 feet wide for the entry of the school children because there was heavy rush of the traffic on the main road. The public way marked as 'A', 'B' and 'C' is situated ever since the school was constructed. The Municipal Board, respondent No. 2, regarded it as a strip of land measuring 750 sq. ft. which was decided to be sold to the respondent No. 2 on 12-4-1988. The S.D.O. Vallabhnagar confirmed the order. A revision was filed before the Divisional Commissioner, Udaipur and the same was dismissed on 30-1-1992. A review petition was filed which was also dismissed.

(3.) It was further averred in the plaint that Nakshatramal, plaintiff No. 20 was having his residential house near the disputed land and he was allowed to open his doors, windows and other apertures towards this land because it has always been regarded as 'rasta aam'. It was averred in the plaint that the Municipal Board was a trustee to keep it as a way. It was prayed that the defendant respondent No. 2 had put his stones and constructed a temporary structure of 'chapra' which may be removed. An application for temporary injunction was also moved. The defendant No. 2 denied all the averments of the plaintiffs and pleaded that the plaintiffs have not followed the provisions of Order 1, Rule 8, CPC and, therefore, the suit cannot be regarded as representative suit. It was further averred that the defendant had a residential house in Ward No. 10 and on its Western side the disputed land was situated where the defendant had constructed a chabutari and had a 'dhalia' for more than 40 years where he used to tie his animals. The rest part of the plot was being used by the defendant for various purposes. He had his apertures, doors etc. opened towards this land ever since the time of his ancestors. This plot of land was never a part of way. On one side (Eastern side) school has constructed a boundary wall of 12 feet height which meant that it was not a way leading towards the school. There were other ways open in order to go to the school. The defendant had purchased the strip of land from the Municipal Board Fatehnagar which has been sold to him on the market rate. Defendant No. 2 purchased it in order to avoid complication and the Municipal Board has sold it in order to increase its income. None of the plaintiffs had any right or title over it. Then the Municipal Board sold it to the defendant No. 2 after issuing a notice on 8-2-1988 against which no objection was filed by any of the plaintiffs or by anybody. The land was a strip of land which has been sold to the defendant by the Municipal Board for Rs. 14,910/-. It was prayed that the application/suit of the plaintiffs may be dismissed.