HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 35/2017 1. Municipal Board, Dholpur Through Its Executive Officer, Municipal Board At Present Municipal Council, Dholpur, Through Commissioner, Municipal Council, Dholpur. 2. Executive Officer, Municipal Board, Dholpur, Presently Commissioner, Municipal Council, Dholpur. ----Appellants Versus Ashok Modi S/o Late Shri Rameshwar Prasad Modi, By Caste Vaish, R/o Modiji Ka Tiraha, Dasharaha Road, Dholpur. ----Respondent For Appellant(s) : Mr. Brij Kishore Sharma, Adv. For Respondent(s) : Mr. Dinesh Kumar Garg, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment 01/08/2025 The civil second appeal has been filed by the appellants- defendants (for short ‘the defendants’) against the judgment and decree dated 19.09.2016 passed by the District & Sessions Judge, Dholpur (for short ‘the first appellate Court’) in regular first appeal No. 09/2013 whereby the first appellate Court dismissed the appeal filed by the defendants and affirmed the judgment and decree dated 02.11.2012 passed by the Civil Judge (J.D.), Dholpur in civil suit No. 112/2009 by which the plaintiff’s suit for permanent injunction was decreed. Brief facts of the case are that the plaintiff filed a civil suit mentioning therein that disputed property was purchased by her mother-Smt. Shankuntla Devi from Raghuvar Dayal, Vaseudev (2 of 4) [CSA-35/2017] Prasad and Deviram by registered sale deed dated 26.10.1959. After death of his parents, the disputed property derived to the plaintiff. It was also mentioned that mother of the plaintiff sought permission from Municipal Board, Dholpur for construction of chajja and house on 13.10.1961 and constructed the same. Thereafter, plaintiff's mother again applied for permission for construction of chabutari, as which permission was granted on 12.06.1967. It was also mentioned that there was a bagichi in the ownership of his father whereupon for constructing the chabutra and stairs the father of the plaintiff sought permission from Municipal Board, Dholpur which was granted on 05.07.1957. Then defendants issued a notice for removal of the stairs, chabutari etc. Defendants filed the written statement and denied the averments made in the plaint and stated plaintiff got raised the pukka construction by making a chabutari upon the government land. The plaintiff had encroached upon 7 ft. wide drain and got raise a construction upon it contrary to law. The defendant being a municipality requires the land in question for widening the road. So, suit filed by the plaintiff be dismissed. On the basis of pleadings of parties, the trial Court framed the following issues:- “1- vk;k fookfnr NTts] pcwrjh] nqdku o lh<+h oS/k :i ls uxj ikfydk dh vuqefr ysdj cuk;s x;s Fks] ftUgsa voS/k :i ls izfroknhx.k /oLr djus ij mrk: gS\ 2- vk;k oknh us lkoZtfud Hkwfe o ukys dh Hkwfe ij vfrdze.k dj fuekZ.k fd;k gS\ 3- vk;k okn izLrqrh ls iwoZ /kkjk 271 jkt- uxj ikfydk vf/kfu;e dk fu;ekuqlkj uksfVl ugha fn;s tkus ls ;g okn iks"k.kh; ugha gS\ (3 of 4) [CSA-35/2017] 4- vuqrks"k\” To prove his case, plaintiff got himself examined as PW-1- Ashok Modi and got exhibited certain documents. The defendants also got examined DW-1- Brij Mohan Singhal. After hearing the parties, the trial Court vide judgment and decree dated 02.11.2012, decreed the suit filed by the plaintiff and restrained defendants to demolish the plaintiff's Chajja, chabutari and stairs etc. which was shown with red colour in the map annexed with the plaint. The defendants challenged the said judgment and decree dated 02.11.2012 passed by the trial Court and the first appellate Court vide judgment dated 19.09.2016 dismissed the appeal filed by the defendants and affirmed the judgment and decree dated 02.11.2012 passed by the trial court. Learned counsel for the defendants submits that the trial Court has committed an error in decreeing the suit filed by the plaintiff in his favour and the first appellate court also committed an error in dismissing the appeal filed by the defendants. Both the courts below have not appreciated the evidence led by the parties in the right perspective. The plaintiff had encroached public way by constructing Chajja, chabutari and stairs. Therefore, defendants issued notice to him to remove the encroachment but he had not removed the same. He further submits that disputed land is required for widening the way. So, the judgments passed by both the courts below are required to be set aside and the present second appeal be admitted on the substantial questions of law, as framed in the memo of appeal. (4 of 4) [CSA-35/2017] Learned counsel for the plaintiff has opposed the arguments advanced by counsel for the defendants and submitted that the plaintiff's parents got constructed the Chajja, chabutari and stairs after obtaining permission. Witnesses of the defendants failed to adduce cogent evidence that plaintiff had encroached public way. So, the trial Court as well as the first appellate Court have not committed any error in decreeing the suit in favour of the plaintiff as well as dismissing the appeal filed by the defendants. So, the appeal filed by the plaintiff be dismissed. I have considered the arguments advanced by counsel for the plaintiff as well as counsel for the defendants. It is an admitted position that the plaintiff's parents had constructed the Chajja, chabutari and stairs after obtaining permission from the defendants. Witnesses of the defendants failed to adduce cogent evidence that plaintiff had encroached the public way. So, in my considered opinion, the trial Court as well as the first appellate Court had not committed any error in dismissing the suit filed by the plaintiff as well as appeal filed by the defendants. So, no ground is made out to admit the appeal on the substantial questions of law, as framed in the memo of appeal. Therefore, the present appeal being devoid of merit, is liable to be dismissed, which stands dismissed accordingly. Pending application(s), if any, stand(s) disposed of. (NARENDRA SINGH DHADDHA),J Tahir/43