KANTI Vs. U I T BIKANER

JUDGEMENT

(1.) The present appeal has been filed against the judgment and decree dated 13-5-1988 passed by learned Additional District Judge, Bikaner in Civil Suit No. 220/85 (Chhotu Lal v. Chelo Devi and others).

(2.) The brief facts leading up to filing of the present appeal are that plaintiff-respondent No. 3-Chhotu Lal filed a suit against Rugha Ram Luhar (father of the appellants) in the Court of District Judge, Bikaner on 23-12-1980 for mandatory and perpetual injunction. Plaintiff-respondent No. 3 alleged in his plaint that his house is situated at Alakhsagar Road and on the south a pacca road going from D.S., N.Rly's office to Kot Gate and one road from it goes towards the shop of Sunder Lal. It is also alleged that between the house of the plaintiff and both the roads, public chowk and land of public way is in existence. The plaintiff-respondent No. 3 further alleged that the defendant No. 1 has raised construction over the land of public utility which was being used as a public way in the vicinity of the plaintiff-respondent No. 3's house by making a Kachaa hut marked with letters GJEF in the site plan. It is thereafter alleged that defendant had also encroached over the land of public utility and public way by raising his hut upto area marked with letters CJEIHG in the site plan. It is also alleged that the plaintiff-respondent No. 3 complained about this encroachment to defendants No. 2 and 3 but no proceedings were initiated by them. According to plaintiff-respondent No. 3 the wrongful acts of defendant-appellant over the public way falls within the definition of public nuisance.

(3.) Defendant No. 1, father of the present appellants-Rugha Ram refuted the averments made in the plaint. It is averred in his written statement that disputed land is neither a public way nor a public chowk. He further averred in his written statement that hut is in existence over the disputed place for more than 25 years and he is living there with his family members. According to him the disputed place was lying barren for many years and now in accordance with the notification of the Government-age old possessions are to be regularised by defendants Nos. 2 and 3.