1. The appeal has arisen out of judgment & decree dated 15.11.2008 passed by learned District Judge, Tonk, in Regular Civil Appeal No. 56/2005 confirming the judgment & decree dated 7.10.2005 passed by learned Civil Judge (Jr. Di), Niwai, District Tonk in Civil Suit No. (60/98) 189/2001 by which the suit of the plaintiffs was decreed and permanent injunctions, both prohibitory and mandatory, were issued against defendants.

2. In brief, facts of the matter are that plaintiff-respondent – Madan Mohan (since deceased) owns a land and house marked as ABCDE shown in the map annexed with plaint. Pacca houses and shops were constructed by the plaintiffs-respondents in the western side of the land. On the Eastern side of south-west corner, there was one well bounded by Pakka Pachra. In the northern side in the house of the plaintiff from A to K Pakka boundary wall is there. The whole vacant land on eastern side is being used by the plaintiff. He has planted certain trees and flowers there and some part of it is used as ¼ck³k½ (Bada) for keeping fodder, fuel, etc. There is a road abutting well. The well is allowed to be used by some other persons. Defendants were also taking water out of it. But after construction of road abutting well, the defendants mala fidely want to acquire forcibly the land shown as K.B.S. Kha in the map and want to construct a Dharmshala on it. On 6.9.1998, defendants cut some trees grown by plaintiff on the land in question and removed fencing (Bad) and threw them in the western part of the land of the plaintiff. On 13.9.1998, they raised a wall of about 1 or 2 feet height with an intention to forcibly take away the possession of the land measuring 125 feet east-west. At last, the plaintiff prayed for injunction against the defendant not to interfere in peaceful use and possession of the land and also mandatory injunction to remove the encroachment and to restore the possession as it was prior to filing of the suit.

3. The defendants/appellants submitted a written statement with the averments that the land shown as ABCDE in the map annexed with the plaint, does not belong to the plaintiff. The land marked as Ka, Kha, B and C belongs to Kohli community who is in continuous possession over it for last more than 50-60 years. The plaintiffs have no right on the well. The well is a public property and is being used by Kohli community since long. There is an old holy place of Bhairuji which is being worshiped by Kohli community and it has been decided to construct Dharmshala. Defendants constructed road abutting the well. Plaintiffs want to grab this land also. The matter is pertaining to agricultural land and Civil Court has no jurisdiction to try and adjudicate the dispute arising out of it. As per revenue record, Khasra No. 4039/1 is a pasture (Charagah) land. It is reserved for construction of Dharmshala, being attached to the well and Bhairuji Mandir, to which plaintiff has no connection and right. Therefore, the suit be dismissed with costs.

4. On the basis of pleadings, following issues were framed :

1- vk;k nkos dh pj.k la- 1 esa of.kZr fooknxzLr Hkwfe iznf'kZr d- [k- ch- lh- Hkwfe oknh ds vf/kiR; ,oa LokfeRo dh gS \

2- vk;k nkos dh pj.k la- 3 ¼v½ ds vuqlkj izfroknhx.k us uktk;t :i ls nhokj dk fuekZ.k fd;k o ftls gVokus dk oknh dks vf/kdkj gS \

3- vk;k fooknxzLr lEifr ch- lh- d- [k- o mlesa fLFkr dqvk ls izfroknhx.k dk dksbZ laca/k ugh gS vkSj ml ckcr oknh dk okn dh pj.k la- 7 ¼c½ ds vuqlkj LFkk;h fu"ks/kkKk izkIr djus dk vf/kdkj gS \

4- vk;k oknh ds i{k esa okndkj.k mRiUu ugha gksrk gS \

5- vk;k U;k;ky; dks okn lquus dk Jo.kkf/kdkj ugha gS \

6- vuqrks"k \

5. Plaintiffs-respondents examined 4 witnesses and exhibited 4 documents. The appellants/defendants examined 10 witnesses and did not exhibit any document. Learned trial court after hearing both the sides, decided the suit vide judgment & decree dated 7.10.2005 and granted injunction prohibitory and mandatory in favour of the plaintiffs-respondents and