JUDGMENT :

Arun Bhansali, J.

1. This appeal has been submitted against the judgment & decree dated 04.04.2019 passed by the District Judge, Pali in Civil Appeal Decree No. 33/2013, whereby the learned judge dismissed the appeal filed by the plaintiff-appellant against the judgment & decree dated 02.09.2013 passed by the Additional Civil Judge (Sr. Div.), Pali, dismissing Civil Original Suit No. 56/2011 (201/2009) filed by the predecessor of the appellants seeking permanent injunction & declaration against the defendant.

2. The suit for permanent and mandatory injunction was filed by plaintiff Champalal on 24.10.2009, inter-alia, with the submissions that a plot purchased and in possession of the plaintiff was situated at Gurudwara road; the same was purchased by plaintiff's father Jasraj for a sum of Rs. 401/- on 22.08.1960, ever since, the plot was in his possession. It was averred that despite writing letters for issuance of patta, the patta has not been issued and therefore, a notice was got issued from his counsel in this regard, however, the patta has not been issued. It was claimed that on the plot a water tank constructed by the plaintiff was situated, which was demolished on 19.10.2009 by the employees of the Municipal Board or the contractor and attempts were made to illegally trespass over the plot.

3. It was alleged that the employees of the Municipal Board threatened that on the plot a community hall & toilet would be constructed. It was prayed that the injunction be granted against the defendant not to dispossess the plaintiff from the plot in question, interfere in use of the said plot and not to construct community hall & toilet. Mandatory injunction was sought for issuance of patta/sale deed in favour of the plaintiff.

4. Written statement was filed by the respondent Municipal Board, inter-alia, with the submissions that the suit was barred by limitation as the same has been filed after 48 years of the alleged purchase. The receipt and notice, which are the foundation of the suit, pertain to removal of debris, no land was sold to the plaintiff's father and that notice under Section 304 of the Rajasthan Municipalities Act, 2009 ('the Act') was not given and as such, the suit was not maintainable.

5. Submissions were also made that on the suit plot, the respondent had constructed public toilet for women and now after removing the same, a community hall & a toilet for the use of general public is being constructed and for which a tender was issued. The land has remained in possession of the defendant and a foundation stone has been laid down on 22.10.2009, which has been demolished by the plaintiff.

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

7. On behalf of the plaintiff, five witnesses were examined and ten documents were exhibited.

8. On behalf of the defendant, five witnesses were examined and three documents were exhibited.

9. After hearing the parties, the trial court came to the conclusion that it was not proved that the plaintiff was in possession of the suit plot; from the documents Ex. A/2 & A/3, which pertained to issuance of tender, it was apparent that the disputed land was in the ownership and possession of the Municipal Board, qua the reliance placed on the so-called receipt, by which the plaintiff claimed to have purchased the plot, it was found that the same did not indicate any such sale. The court came to the conclusion that the documents merely pertained to the purchase of debris in auction. The suit was found within limitation and that the same was barred under the provision of Section 304 of the Act on account of non-issuance of prior notice and consequently, the trial court dismissed the suit.

10. Feeling aggrieved, the appellant filed first appeal.

11. The first appellate court, after hearing the parties, reiterated the finding recorded by the trial court regarding the document Exhibit-1 pertaining to only removal of the debris and not the sale of plot. The appellate