Mewa Ram vs Achla Ram and Another

Hon''ble Dr. Justice Vineet Kothari

The present second appeal has been filed by the appellant - plaintiff against the judgment and decree dtd.9.2.20112 passed by the learned Additional Dist. Judge No. 3, Jodhpur in Civil Appeal No. 66/2007 whereby the learned Additional Dist. Judge dismissed the appeal and affirmed the judgment and decree dtd.11.9.2007 passed by the learned Civil Judge (J.D.), Jodhpur in Civil Original Suit No. 41/2003 - Mewa Ram v/s Achla Ram whereby the whereby the learned trial Court partly decreed the suit for permanent and mandatory injunction. Against the concurrent decree of the courts below partly decreeing the suit of the plaintiff - appellant, but refused to grant mandatory injunction, the plaintiff appellant has approached this Court by way of present second appeal.

The learned counsel for the appellant has dawn the attention of the Court towards photographs produced before this Court of the suit property and submitted that the pillar was constructed in front of residential house of the plaintiff on public road by the defendants and on both the sides obstructions was created by the said pillar and thus, mandatory injunction for demolition of the same ought to have been granted.

Upon Court question, the learned counsel for the appellant Mr. Hedau submitted that the defendant does not live in adjacent house or anywhere near the said suit premises of the plaintiff. The suit itself was filed by the plaintiff against the private defendants Achla Ram and Bagta Ram without impleading Panchayat Samiti or Gram Panchayat which has control over the said construction on the public place.

After hearing the learned counsel, though this Court is of the opinion that no substantial question of law arises in the present second appeal requiring consideration by this Court u/s 100 C.P.C., However, at the request of learned counsel for the appellant, the appellant is granted liberty to approach Gram Panchayat, Dhundhara, Dist. Jodhpur for appropriate relief in this regard. With the aforesaid liberty, the present second appeal is dismissed. A copy of this judgment be sent to the courts below and respondents forthwith.