Honble YADAV, J. – The present appeal has been filed against the judgment and decree dated 13.5.88 passed by learned Additional District Judge, Bikaner in Civil Suit No. 220/85 (Chhotu Lal vs. Chelo Devi and Ors.).

(2). The brief facts leading upto filing of the present appeal are that plaintiff-respondent No.3 Chhotu Lal filed a suit against Rugha Ram Luhar (father of the appellants) in the court of District Judge, Bikaner on 23.12.80 for mandatory and perpetual injunction. Plaintiff-respondent No. 3 alleged in his plaint that his house is situated at Alakhsagar Road and on the south a pacca road going from D.S., N.Rlys office to Kot Gate and one road from it goes towards the shop of Sunder Lal. It is also alleged that between the house of the plaintiff and both the roads, public chowk and land of public way is in existence. The plaintiff- respondent No.3 further alleged that the defendant No.1 has raised construction over the land of public utility which was being used as a public way in the vicinity of the plaintiff- respondent No.3s house by making a Kachaa hut marked with letters GJEF in the site plan. It is thereafter alleged that defendant had also encroached over the land of public utility and public way by raising his hut upto area marked with letters CJEIHG in the site plan. It is also alleged that the plaintiff- respondent No.3 complained about this encroachment to defendants No.3 and 2 but no proceedings were initiated by them. According to plaintiff-respondent No.3 the wrongful acts of defendant-appellant over the public way falls within the definition of public nuisance.

(3). Defendant No. 1, father of the present appellants-Rugha Ram refuted the averments made in the plaint. It is averred in his written statement that disputed land is neither a public way nor a public chowk. He further averred in his written statement that hut is in existence over the disputed place for more than 25 years and he is living there with his family members. According to him the disputed place was lying barran for many years and now in accordance with the notification of the Government-age old possessions are to be regularised by defendants No. 2 and 3.

(4). Defendant No 2., Urban Improvement Trust, Bikaner also denied the plaint allegations. In its written statement it is specifically averred that there is no public way or public chowk as alleged in the plaint by the plaintiff-respondent No.3. The existence of hut of defendant No.1 over the disputed place was admitted for a period of more than 25 years. It is averred to be situated at 5 distance from the wall of plaintiff-respondent No.3. Defendant No.2 also denied about any complaint lodged by the plaintiff in this regard, in its office.

(5). Defendant No.3, Municipal Council, Bikaner also filed a separate written statement, denying the disputed land to be of public chowk and public way. It is averred in the written statement that the disputed land is open Government land as such the plaintiff-respondent No.3 is not entitled to obtain mandatory injunction.

(6). On the aforesaid pleadings of the parties the learned trial court framed as many as 11 issues, focusing the attention of the parties to adduce evidence in support of their respective claims.

(7). Plaintiff-respondent No.3 in his support examined himself as PW 1 and his son Satya Prakash as PW 2. Defendant-appellants examined DW 1 Mohan Lal, DW 2 Salu Ram, DW 3 Chuna Ram and DW 4 Shanti Devi in support of their claim.

(8). After hearing the learned counsel for the parties, learned trial court decreed the suit in toto. Aggrieved against the judgment and decree the present first appeal has been filed.

(9). I have heard learned counsel for the parties and perused the judgment and decree under appeal.

(10). From the arguments of learned counsel for the parties, the following points for determination emerge in the present appeal:–

1. WHETHER the present suit is barred under sub-sec. (1) of Sec. 91 of CPC ?

2. WHETHER the plaintiff claims titl

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