[2025:RJ-JP:44982]

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 167/2022

1. Badri Lal S/o Nathulal Kumawat, R/o Ward No. 6, Kumawato Ka Mohalla, Uniyara, District Tonk.

2. Lalluram S/o Nathulal Kumawat, R/o Ward No. 6, Kumawato Ka Mohalla, Uniyara, District Tonk.

3. Suresh S/o Nathulal Kumawat, R/o Ward No. 6, Kumawato Ka Mohalla, Uniyara, District Tonk.

4. Santosh Daughter Of Nathulal W/o Gopal Kumawat, R/o Near Sardar Patel Chauraha, District Tonk.

5. Sushila D/o Nathulal W/o Munna Kumawat, R/o Ramdwara Chatri, Uniyara, Dist. Tonk.

----Appellants/Defendants Versus

1. Devkinandan S/o Late Kunjbihari Kumawat, R/o Ward No.

6, Uniyara, District Tonk. Respondent No.1/Plaintiff

2. Municipal Corporation Uniyara, Through Its Executive Officer, Municipal Corporation, Uniyara Tonk.

----Respondent No.2 For Appellant(s) : Mr. Bharat Yadav For Respondent(s) : Mr. Nitin Jain Mr. Vaibhav Pareek HON'BLE MR. JUSTICE SUDESH BANSAL

Order

10/11/2025

1. Appellants are defendants and have preferred this Second Appeal under Section 100 CPC feeling aggrieved by judgment and decree dated 15.12.2015, passed by Civil Judge, Uniyara, District Tonk to remove their encroachment of Chabutara over the public chowk and the decree has been affirmed in First Appeal by the Court of Additional District Judge, Tonk dismissing appellants’ First Appeal thereagainst.

2. Heard counsel for both the parties and perused the record.

3. Indisputably, three civil suits, two filed by and on behalf of respondent No.1 – plaintiff and third one by and on behalf of appellant No.1 – Badri Lal were consolidated and tried together. Plaintiff’s claim for issuance of mandatory and permanent injunction to close the door and windows of defendants’ house towards public chowk has been dismissed and defendants’ claim to retain Chabutara in question, in front of their house allegedly constructed under the permission of Municipal Corporation, Uniyara, has been rejected and accordingly, Chabutara of defendants has been held to be made on the portion of public chowk, hence, has been directed to be removed. This Chabutara has been shown in the map appended with the plaint as Ex.1 and marked as MNOD, shown by red colour, situated in front of the defendants house.

4. Counsel for the appellants in his long-drawn arguments, sought to emphasize that the Chabutara of defendants is not constructed on the area of public chowk but is not a part of public chowk and situated just in front of defendants’ house. Further, his submission is that Chabutara is constructed since long and witness DW-4 – Nagyendra, Executive Officer of Municipal Corporation, Uniyara, admits existence of Chabutara in map Ex.3, in front of defendants’ house, so same may not be directed to be removed. His submission is that this Chabutara is existing since years together and the Courts below committed perversity in holding the Chabutara as encroachment over the public chowk.

However, it is noteworthy that learned counsel for the appellants, during course of his arguments, does not dispute that permission to construct Chabutara was refused by Municipal Corporation, on account of pendency of lis and though defendants tried to deposit the regularization cost but same was also not permitted by the Municipal Corporation.

5. Having adverted to the contention of the counsel for the appellants, this Court noticed that learned trial Court, in its well reasoned judgment, has considered the document Ex.3. The trial Court in its fact findings at internal page 10 of the judgment, has clearly observed that Ex.3 does not depict grant of any permission to defendants to construct the Chabutara, rather trial Court on the strength of approved map of defendants’ house (Ex. A3) and the report of the Court Commissioner dated 15.04.1994 as also map of Commissioner‘s report (Ex.A1) held that at that point of time, Chabutara in front of defendants’ house was not constructed and only raw material was found at site, and later on, in ma