BAKSHIRAM Vs. DHANRAJ

JUDGEMENT

(1.) Feeling aggrieved by the judgment dt. 11th of December, 2018 of District Judge, Balotra (for short, 'learned lower appellate Court'), appellant-defendants No. 1 and 2 have preferred mis appeal under Order 43 Rule 1(u) read with Sec. 104 of the Code of Civil Procedure, 1908 (for short, 'CPC'). By the impugned judgment, learned lower appellate Court, while setting aside judgment and decree dt. 17th of December, 2004 passed by Civil Judge (Sr. Div.), Balotra (for short, 'learned trial Court') dismissing the suit, of the respondent-plaintiff for perpetual and mandatory injunction, remanded the matter back for deciding issue No. 5 afresh after taking evidence of the rival parties.

(2.) The facts, apposite for the purpose of this appeal are that respondent-plaintiff filed a suit for perpetual and mandatory injunction before learned trial Court inter-alia with the specific averment that at village Jasol one locality known as Sunaron ka Bas is situated near Mahaveer Chowk where many houses of business and goldsmiths are situated. It is further averred that towards southern side of respondent No. 2's house there is a common chowk, which is utilized by the residents of locality. The dimensions of chowk are mentioned in the plaint. It is also averred in the plaint that Gram Panchayat has sold the aforesaid chowk to appellant-defendant dehors the rules inasmuch as a common chowk, which is to be utilized by public at large cannot be allotted to anyone. The respondent-plaintiffs have also questioned authority of the Gram Panchayat to allot public chowk to the appellant. Besides that, some other averments are also made in the plaint. The respondent-plaintiffs in order to show cause of action have also alleged that when appellants started construction at side, they approached Gram Panchayat but no heed was paid to their request. Alleging specifically in the plaint that allotment of the land in question to appellants is void ab initio, respondent plaintiffs prayed for aforementioned reliefs.

(3.) The suit is contested by the appellants inter-alia on the ground that the land in question is in their possession since time immemorial and allotment of the same has been made by the Gram Panchayat in adherence of law. It is also averred that the land in question is not a public chowk and the Gram Panchayat was authorized to allot the same. Apart from the reason mentioned, on behalf of appellants a specific objection was also raised that suit is barred by limitation. Written statement is followed by rejoinder of the respondent plaintiffs reiterating the averments made in the plaint.