Order

1. The present second appeal has been filed aggrieved of judgment & decree dated 15.11.2019 passed by District Judge, Pali in Civil First Appeal No.43/2013 whereby judgment & decree dated 01.11.2013 passed by Civil Judge (Senior Division), Pali (hereinafter referred to as the 'learned Trial Court') in Civil Original Suit No.15/2011 (48/2007), stood reversed and the suit in question stood partly decreed.

2. Vide judgment & decree dated 01.11.2013, the learned Trial Court proceeded on to dismiss the suit for permanent and mandatory injunction as filed on behalf of the plaintiffs. However, the first Appellate Court proceeded on to partly allow the appeal as filed by the appellant plaintiffs and vide the decree, restrained the respondents from dispossessing the plaintiffs from the premise in question (marked as ‘abcd’) in pursuance to notice dated 01.05.2007.

3. The facts are that the suit for injunction was filed on behalf of the plaintiffs with the following averments:

i) Defendant Municipal Council was trying to dispossess them whereas they were in possession of the abadi land since the year 1971. Earlier too, a dispute arose and at that point of time also, a suit for injunction was filed by them which stood decreed vide judgment & decree dated 15.12.2003.

ii). Vide the said decree (Ex.18), defendant Municipal Council was restrained from interfering with the possession and construction of the plaintiffs without due process of law. Further, a liberty was granted to the Municipal Council to dispossess the plaintiffs, if it is found that they had encroached on the land of way but that too, after adopting the due process of law.

iii). Now in the year 2007, notice dated 01.05.2007 was served on them without assigning any reason as to how their possession was termed to be an encroachment.

4. The learned Trial Court, while dismissing the suit, recorded a finding that the plaintiffs failed to prove their ownership on the land in question and hence, their possession was nothing more than an encroachment.

5. The first Appellate Court however reversed the said finding while recording a finding that notice dated 01.05.2007 was prima facie not valid/legal. The said notice did not reflect the area of encroachment, if any, of the plaintiff. Further, the notice did not reflect any particulars of the land which allegedly was encroached upon by the plaintiffs. The Court further observed that the defendants, who did not lead any evidence, failed to prove that any nuisance was caused by the plaintiffs.

6. Most importantly, the first Appellate Court recorded a specific finding that although the ownership of the plaintiffs on the land in question was not proved, their old possession and old construction was very well proved.

7. Counsel for the appellants submits that the first Appellate Court omitted to consider that a simplicitor suit for injunction was not even maintainable as the plaintiffs had not prayed for any relief of declaration. So far as the notice as served upon the plaintiffs is concerned, the same was in accordance with the liberty granted to the Municipal Council by the Court vide judgment dated 15.12.2003. Hence, the same was perfectly valid.

8. After hearing the Counsel and perusing the record, this Court is in consonance with the findings as recorded by the first Appellate Court.

9. A bare perusal of notice dated 01.05.2007 reflects that as per the averments in the said notice itself, the plaintiffs were in possession of an abadi land. The notice does not aver of any encroachment on the land of way. Further, the notice also does not speak of any obstruction on the naala which was sought to be constructed and which was the bone of contention in the present matter. In that view, the said notice cannot be held to be in accordance with the liberty granted vide judgment dated 15.12.2003. Hence, the findings as recorded by the learned first Appellate Court being in consonance with the evidence a