JUDGMENT :

1. Appellant-Defendants (hereafter referred to ‘defendants’) have preferred this second appeal under Section 100 of Civil Procedure Code against the judgment and decree dated 15.01.2021 passed in Civil First Appeal No.20/2019 by the Court of Additional District Judge No.1, Bharatpur whereby and whereunder the first appeal has been allowed and consequentially, the civil suit for permanent injunction filed by respondent-plaintiff, being civil suit No.26/2012, which was dismissed by the Additional Civil Judge No.1, Bharatpur, has been decreed against appellant-defendants No.1 and 2 in the manner that they will not make any encroachment and construction over 20’ wide way and if during pendency of the suit any construction has been made, the Urban Improvement Trust (hereafter referred to ‘U.I.T.’), Bharatpur would remove the same in accordance with law. Simultaneously, the counter claim made by appellant-defendants No.1 and 2 against the co-defendant No.3-U.I.T., Bharatpur has been dismissed. The operative portion of the impugned judgment and decree dated 15.01.2021 reads as under:-

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2. The civil suit for permanent injunction was instituted by the respondent-plaintiff (hereafter referred to ‘plaintiff’) on 28.12.2006, jointly against appellant-defendants No.1 and 2 and respondent-defendant No.3 U.I.T., Bharatpur, in relation to a way in question alleging its width as 20’ wide. It appears that after filing of the suit, the defendant Nos.1 and 2 made some unauthorized encroachment over the part of way in question and the defendant No.3-U.I.T., Bharatpur passed order dated 04.01.2007 under its power by virtue of Section 92 of Rajasthan Municipalities Act, 1959 to remove such encroachment, therefore, defendants No.1 and 2 alongwith their written statement submitted on 08.01.2007 made a counter claim challenging the order dated 04.01.2007 for restraining the defendant No.3-U.I.T. not to demolish the construction pursuant to its order dated 04.01.2007. The trial court being Additional Civil Judge No.1, Bharatpur vide judgment and decree dated 27.02.2019, dismissed the plaintiff’s suit for permanent injunction, however decreed the counter claim of defendants No.1 and 2 restraining the defendant No.3-U.I.T., Bharatpur for not removing any construction from the disputed way without following due course of law. On filing first appeal thereagainst by the respondent-plaintiff, the judgment and decree dated 27.02.2019 has been quashed and counter claim of defendants No.1 and 2 has also been dismissed by the first appellate court being court of Additional District Judge No.1, Bharatpur vide impugned Judgment and decree dated 15.01.2021, which is impugned herein.

3. The dispute between parties is in relation to a public way exists towards eastern side of the plaintiff’s house and western side of defendants’ house situated at Gulzar Baag Colony, opposite Multi purpose School, Bharatpur. Plaintiff’s claim is that this is a government and public way having width of 20’ whereas defendants contend that this is a ‘Gali’ of only 10’ wide. Thus, the fundamental dispute is with regard to the width of this way/gali as to whether it is 20’ wide or 10’ wide. It is undisputed fact that this way/gali goes and leads to connect with main road from Achnera to Bharatpur.

4. Relevant facts, in brief as culled out from the record, are that the respondent-plaintiff instituted a civil suit for permanent injunction on