HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Second Appeal No. 455/2012

1. Satpal Son of Mukandram, r/o Srimadhopur, Dist. Sikar

2. Sanwarmal son of Shri Badri Prasad

3. Phoolchand son of Shri Badri Prasad

4. Babulal son of Shri Badri Prasad

5. Mst. Phuli Devi widow of Shri Badri Prasad

6. Soniya Devi daughter of Badri Prasad

7. Mamta Devi daughter of Badri Prasad

8. Chand Devi daughter of Shri Badri Prasad

all resident of Srimadhopur, District Sikar (Rajasthan)

----Appellants-Plaintiffs

Versus

1. Smt. Manni Devi wife of Maliram, resident of Srimadhopur,

District Sikar (Rajasthan)

2. Municipal Board, Srimadhopur through its Executive Office,

Municipal Board, Srimadhopur, District Sikar (Rajasthan)

----Respondents-Defendants

For Appellant(s)

:

Mr. Rajneesh Gupta

For Respondent(s)

:

HON'BLE MR. JUSTICE SUDESH BANSAL

Judgment

16/09/2022

1.

The instant second appeal under Section 100 of Code of Civil

Procedure has been filed by appellants-plaintiffs, assailing the

judgment and decree dated 13.07.2012 passed in Civil First

Appeal No.13/2008 by the Court of Additional District Judge (Fast

Track) No.2, Sikar Head Quarter, Srimadhopur, affirming the

judgment and decree dated 31.07.2008 passed in Civil Suit

No.136/2003 (62/1990) by the Court of Civil Judge (Senior

Division), Srimadhopur, Dist. Sikar, whereby and whereunder a

(2 of 6)

[CSA-455/2012]

civil suit for permanent injunction filed by plaintiffs was dismissed

on merits.

2.

Heard counsel for appellants and perused the impugned

judgments and record.

3.

It appears from record that plaintiffs claimed a way of 20ft

wide towards northern side of their plot and instituted the present

civil suit for permanent injunction stating inter alia that

respondent-municipal board, Srimadhopur, in collusion with the

private respondent, has allotted plots in the part of way and

thereby narrowing the width of way from 20ft to 10ft. In counter,

the Municipal Board, Srimadhopur, submitted written statement

and denied the claim of plaintiffs to have any way of 20ft wide

towards northern side of their plot and disclosed that plots No. 21,

22 & 23 have allotted to defendants No.1,2 & 3 and no way of 20ft

wide is existing at site.

4.

The trial court, after recording of evidence of both parties,

concluded that plaintiffs have not challenged the allotment of plots

No.21, 22 & 23, issued by Municipal Board, Srimadhopur, in favour

of defendants No.1, 2 & 3 and further, PW-1 in cross examination

has admitted the existence of 9ft wide way towards northern side.

Plaintiffs have not disputed the existence of 20ft wide way towards

western side of their plot to have access to their plot. In that view,

the civil suit for permanent injunction was dismissed vide

judgment dated 31.07.2008.

5.

Plaintiffs preferred first appeal assailing the judgment and

decree dated 31.07.2008. Before the first appellate court,

additional facts transpired that after filing of the suit, plaintiffs

have purchased Plots No.21 and 23 from defendant No.2 Anand

(3 of 6)

[CSA-455/2012]

Bhatnagar and defendant No.3 Sanwarmal and plaintiffs did not

pursue their suit against defendant No.2 and 3, therefore, first

appeal was filed against defendant No.1 and Municipal Board,

Srimadhopur.

The first appellate court, re-appreciated the entire evidence

and observed that plaintiffs have not produced any evidence to

prove that any 20ft wide public way is existing towards northern

side. The way having the width of 20ft, was not proved neither by

the allotment letter of plaintiffs (Ex.1) nor by allotment letters of

defendant No.1-Manni Devi (Exhbit A-1 & Exhbit A-2). The claim

of plaintiffs that their vehicles pass through this way was belated

on the ground that plaintiffs, admittedly have an another way of

20ft wide towards western side of their plot. It was also noticed

that civil suit for declaration was filed by