P.K. LOHRA, J.

Appellant-defendant has laid this second appeal under Section 100 CPC to assail judgment & decree dated 4th of March 2016, passed by Addl. District Judge No. 1, Jodhpur Metropolitan (for short, ‘learned first appellate Court’), whereby learned first appellate Court has affirmed judgment and decree dated 19th of May 2014, passed by Addl. Civil Judge (Jr. Div.) No. 3, Jodhpur Metropolitan (for short, ‘learned trial Court’), decreeing the suit of plaintiff-respondent No. 1 for permanent and mandatory injunction.

2. Facts sans unnecessary details, as emerge from the record, are that plaintiff filed a suit for permanent and mandatory injunction against appellant-defendant and Municipal Corporation, Jodhpur and its Chief Executive Officer, inter-alia, stating that in the western side of his house one temple exists and in between plaintiff and first-defendant's house, there lies some open space which is just like a Chowk and is used as a way. It is further averred in the plaint that defendant encroached over the land adjacent to his house left out after the boundary of temple and has raised garage-type construction admeasuring about 10’ x 12’ which is being used by him to park his car. Plaintiff further averred that said encroachment has caused great hardship to the persons passing through the way. It is also the case of the plaintiff that though a representation was made to Municipal Corporation but same bore no fruitful results as such he has filed the suit with the prayer to restrain the defendant No. 1 by permanent injunction not to close the way of Chowk and create any obstruction. The plaintiff further sought direction against defendant Nos. 2 & 3 not to regularize the encroachment of defendant No. 1 and to dismantle the unauthorizedly constructed garage.

3. Upon service of summons, appellant-defendant filed written statement to the suit and pleaded that the plaintiff has no house of his own in the vicinity of Makrana Mohalla rather he is in occupation of the property belonging to Devsthan Department and has no right to file suit in the nature of public interest. It was further pleaded that no obstruction is caused by him and a positive assertion was made that the garage was constructed by his father in his lifetime to which he has made no change, therefore, it is wrong to say that he has made any encroachment. According to the defendant, the disputed garage is very small and a car cannot be parked therein. It was contended that at the time of construction no objection was raised either by the plaintiff or anyone else and the present suit is filed just to harass him. With these pleadings, the appellant-defendant prayed to dismiss the suit.

4. A written statement was also filed by Municipal Corporation, Jodhpur stating that land of a public way or Chowk cannot be encroached by anyone and it has right to remove such encroachments after giving proper opportunity to concerned party. It was contended that since the notice by plaintiff and other residents was sent on 19.10.1992 and suit is laid on 24.01.2003, it is time barred. It was emphasized that due notice was given to the defendant, who appeared and sought time to file reply. Municipal Corporation further stated that steps have been taken and defendant has been called to submit his ownership documents. With aforesaid pleadings, it was prayed that no decree be passed against it.

5. Learned trial Court, on the basis of the pleadings, framed three issues for determination. In support of their case, respondent-plaintiff examined three witnesses PW-1 Brahmanand, PW-2 Guman Singh and PW-3 Sushila Devi and in documentary evidence produced Exs. 1 to 6. The appellant/defendant neither examined any witness, nor submitted any documents to substantiate his defence. Finally, the learned trial Court, by its judgment dated 19.05.2014 decreed the suit against appellant-defendant. Feeling aggrieved by the same, appellant preferred an appeal before the first appellate Court.