The main legal point established in the judgment is that the existence of the public lane, as indicated in the sale deed, and the defendant's lack of ownership over the lane were crucial in determining the outcome of the case.

JUDGMENT

1. This second appeal under Section 100 CPC is directed against the judgment & decree dated 19.01.2021 passed by the Additional District Judge, Pindwara, District Sirohi, whereby the appeal filed by the appellant against the judgment & decree dated 08.02.2018 passed by the Civil Judge, Pindwara, District Sirohi has been rejected and the decree for permanent and mandatory injunction passed by the trial court has been upheld.

2. The suit was filed by Dinesh Kumar against the appellant- defendant, inter-alia, with the averments that the plaintiff's house was situated at Village Jhadoli, the boundaries of the house were indicated in the plaint. It was averred that the plaintiff has purchased the land from Jaisa Ram S/o Galbaji by a registered sale deed dated 06.04.1993. It was claimed that the only way for coming on the said plot was from the public lane situated on Western side of the plot.

3. Alongwith the suit, a map was produced, wherein the disputed public way was indicated as B.P.G.H. and the width of the lane was indicated as 13ft. It was claimed that the lane was in existence for long time and is being used by him as and when required. The defendant, without any right, has constructed a toilet ad measuring 6' x 4' on the said lane, has placed bricks and firewood in the lane and after putting up a stove started cooking food both the times in the said lane.

4. The averments were made regarding inconvenience being suffered by the plaintiff on account of blocking of the said lane and it was prayed that the directions be given for removal of the toilet, bricks, firewood, stove & other material and lane be put in condition as before the encroachment was made and by way of permanent injunction, the defendant be restrained from repeating the same.

5. Written statement was filed by the defendant disputing the boundaries and claiming that the lane was not a public lane but is meant for use by the defendant only. It was indicated that there is a gate on the Northern side of the plaintiff's plot where there is a gate, which is being used by him, the lane has not been used by him at any point of time, the same is that of ownership of the defendant in which the plaintiff cannot be permitted to interfere. It was also claimed that the Gram Panchayat was a necessary party, which has not been impleaded and therefore, the suit was not maintainable.

6. Based on the pleadings of the parties, the trial court framed five issues.

7. On behalf of the plaintiff, two witnesses were produced and eight documents were exhibited.

8. On behalf of the defendant, he himself was examined and four documents were exhibited.

9. After hearing the parties, the trial court came to the conclusion that the lane in question was a public way, the defendant has encroached on the said lane by raising construction and put up bricks and stove. The Gram Panchayat was not a necessary party and that the defendant was not entitled for special cost.

10. Based on the findings on all the issues, the suit was decreed and the defendant was directed to remove the construction, bricks, stove etc. and restore back the lane to its previous status and not to obstruct the lane in future.

11. Feeling aggrieved, the appellant filed first appeal. The First Appellate Court by its judgment came to the similar conclusions as drawn by the trial court and consequently dismissed the appeal.

12. Learned counsel for the appellant-defendant made submissions that the two courts below was not justified in decreeing the suit/dismissing the appeal.

13. Submissions were made that the burden about existence of the lane was that of the plaintiff and the two courts below could not have relied on the statement of the defendant in this regard. Further submissions were made that merely because the predecessor in title of the plaintiff was using the so-called lane, cannot confer any right on the plaintiff, inasmuch as, the plaintiff's case was not based on easement and in case, he was to claim any easement, admit