IMPORTANT POINT
The second appeal was dismissed as it did not present substantial questions of law, affirming the lower courts' findings of encroachment by the appellants.

JUDGMENT :

Birendra Kumar, J. - Heard the parties at the admission stage.

2. The first point for consideration is whether any substantial question of law is involved in this second appeal. If the answer goes in affirmative then the second point would be whether the application of the appellants under Order 41, Rule 27 CPC is fit to be allowed.

3. The appellants filed Civil Original Suit No.18/2002 for a decree of injunction restraining the respondents from demolishing the boundary wall and other constructions of the appellants as well as from taking over forceful possession. By the impugned judgment and decree dated 05.02.2010 passed by learned Civil Judge (JR. Division), Devgarh, District-Rajasamand in Civil Original Case No.18/2002, the learned trial judge dismissed the suit. The dismissal was challenged in Civil Appeal No.13/2013, which was also dismissed on 16.12.2015, hence this second appeal against concurrent finding of fact.

4. The case and claim of the plaintiff/appellants is that Mahaveer Brahmcharya Ashram for education and development of youth received donation of 7 bigha and 8 biswa of land by Thikanedar-Rawat Sangram Singh in the year 1951 through 'patta'. Some more land was donated, however without 'patta',. The appellant constructed a boundary wall on the entire portion and made construction of building as per requirement. Later on, the said Ashram was named as appellant-Jain Shikshan Sangh and the Jain Shikshan Sangh was registered under Rajasthan Societies Registration Act bearing Registration No.113/1968-69. The Sansthan was situated at Devgarh Madariya. By efflux of time, the Devgarh City expanded closure to the Society land and the respondent-Municipality started pressurizing to take forceful possession on the land of the appellants.

5. A Notice dated 23.06.2002 (Ex.5) was served on the appellants by the respondent-Municipality for vacating Plot Nos.3929, 3930 and 3931, which was either of the Municipality or of the State of Rajasthan (respondent No.1). Thereafter, the appellants filed the aforesaid suit on 24.07.2002.

6. The case of the respondents is that the appellants surreptitiously encroached over khasra Nos. 3929 and khasra No.3930 as well as khasra No.3931. Total encroached area was 1 bigha and 12 biswa. The respondents asserted that they are legally entitled and empowered to take possession over the encroached area under the Rajasthan Municipal Act, hence they have served the notice on the appellants to vacate. The respondents further asserted that the appellants have not sought for declaration of title therefore relief for permanent injunction cannot be granted. Moreover, the respondents are entitled to recover possession of their land, which has been encroached over by the appellants.

7. After consideration of oral and documentary evidence, the learned trial judge dismissed the suit and the learned First Appellate Court affirmed the dismissal.

8. The following questions have been raised as substantial question of law involved in this second appeal:-

"(i) Whether both the impugned judgment and decree are vitiated on account of misreading of evidence?

(ii) Whether both the impugned judgment and decree are unsustainable in eyes of law on account of omission to consider vital evidence available on record?

(iii) Whether after decision of issue no.2 against the respondents, the respondents put forcible take possession of a part of suit property in the manner done?

(iv) Whether the finding on issue no.1 is illegal and perverse in view of admitted documents produce by the defendants?"

9. Learned trial judge had framed the following two issues:-

(i) Whether the suit property is under possession of the appellants as title holder and as such the respondents had no authority to disposes the appellants.

(ii) Whether the plaintiff/appellants had encroached over the land of the State of Rajasthan and Municipality and the respondents are entitled to recover possessions.

Learned trial judge concluded that in fact khasra Nos. 3