[2025:RJ-JP:32270] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 186/2011 1.Vinay Singh S/o Samandar Singh, 2. Jagdish @ Jaggi S/o Fateh Singh, 3. Peetam S/o Mohar Singh, 4. Sri Ram S/o Mohar Singh, All R/o Village Jatoli Ghana, Tehsil & District Bharatpur. ----Appellants-Plaintiffs Versus 1. Kishan Singh S/o Jugal, 2. Mohan S/o Devkaran, 3. Maharaj Singh S/o Devkaran, All R/o Village Jatoli Ghana, Tehsil & District Bharatpur. ----Respondent-Defendants For Appellant(s) : Mr. Bharat Saini, Adv. For Respondent(s) : Mr. Yogesh Singhal, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment Date of Judgment 19/08/2025 The civil second appeal has been filed by the appellants- plaintiffs (for short ‘the plaintiffs’) against the judgment and decree dated 23.02.2008 passed by the Additional District Judge No.1, Bharatpur (for short ‘the first appellate Court’) in civil regular appeal No.22/2007 whereby the first appellate Court dismissed the appeal filed by the plaintiff and affirmed the judgment and decree dated 09.02.2007 passed by the Civil Judge (J.D.) & Judicial Magistrate, Bharatpur in civil suit No. 33/2004 by which the plaintiffs’ suit has been dismissed. Brief facts of the case are that the plaintiffs filed a suit for mandatory and permanent injunction against the defendants [2025:RJ-JP:32270] (2 of 3) [CSA-186/2011] mentioning therein that there is a public way in between the houses of the plaintiffs as well as the defendants as mentioned in Para No.2 of the plaint. The width of the way is 12 ft. towards plaintiffs’ chowk and 17 ft. towards common way. The defendants wanted to close the said way. The said way was being used by the plaintiffs in carrying tractor and other vehicles in the chowk but the defendants constructed a Chabutara on it. So, the suit filed by the plaintiffs be decreed. Despite several opportunities, the defendants did not file their written statement. To prove their case, the plaintiffs got examined as PW-1- Peetam Singh, PW-2 Munshi Lal, PW-3 Satya Prakash and PW-4 Govind Singh. The defendants also got examined DW-1-Kishan Singh, DW-2 Maharaj Singh and DW-3 Mahaveer. After hearing the parties, the trial Court vide judgment and decree dated 09.02.2007, dismissed the suit filed by the plaintiffs. Plaintiffs challenged the said judgment and decree dated 09.02.2007 passed by the trial Court by filing an appeal and the first appellate Court vide judgment and decree dated 23.02.2008 dismissed the appeal filed by the plaintiffs. Learned counsel for the plaintiffs submits that the trial Court as well as the first appellate court have committed an error in dismissing the suit as well as the appeal filed by the plaintiffs. Both the courts below have not appreciated the evidence led by the parties in the right perspective. Learned counsel for the plaintiffs also submits that the defendants have not filed their written statement, so the averments in the plaint remained uncontroverted by the [2025:RJ-JP:32270] (3 of 3) [CSA-186/2011] defendants. Therefore, the judgments passed by both the courts below be set aside and the present second appeal be admitted on the substantial questions of law, as framed in the memo of appeal. Learned counsel for the defendants has opposed the arguments advanced by counsel for the plaintiffs and submitted that the trial court as well the first appellate court rightly dismissed the suit as well as the appeal filed by the plaintiffs. So, the appeal filed by the plaintiffs be dismissed. I have considered the arguments advanced by counsel for the plaintiffs, learned counsel for the defendants and perused the impugned judgments and decree passed by the courts below. It is an admitted position that the plaintiffs failed to adduce any cogent evidence that the defendants had encroached upon the public way. During the course of evidence, the plaintiffs’ witnesses did not submit any evidence regarding the public way. It also transpires that the plaintiffs themselves encroached upon the disputed way. So, in my considered opinion, the trial court as well as the first appellate court have not committed any error in dismissing the suit as well as the appeal filed by the plaintiffs. 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 Gourav/70