JUDGMENT 1. - This civil second appeal has been preferred by appellant-defendants being aggrieved by the judgment and decree dated 11.08.2011 passed by learned Additional District Judge, Phalodi, District Jodhpur in Civil Appeal Decree No.3/2009, whereby the learned first appellate court dismissed the appeal filed by the appellant-defendants and affirmed the judgment and decree dated 06.04.2009 passed by learned Civil Judge (Senior Division), Phalodi, district Jodhpur in Civil Suit No.41/2002, whereby the suit filed by the respondent-plaintiffs for permanent injunction was decreed. 2. The brief facts of the case as set out in the memo of appeal are that the respondent-plaintiffs filed a suit for permanent injunction against the appellant-defendants. It was averred in the plaint that houses belonging to the appellant-defendants are situated in Village Kichan and in between these houses, a way is in existence. It was further averred that way in between the houses of the appellant defendants is used by the villagers for moving towards bank, post office, aurvedic hospital, bus stand etc. and that the appellant-defendants have closed the said way by affixing gate. The respondent-plaintiffs sought permanent injunction against the appellant-defendants to restrain them from making any construction on the alleged way and further to remove the gate affixed by the appellant-defendants. 3. The appellant-defendants filed written statement, wherein it was averred that all the roads relating to the village vests in Gram Panchayat and the alleged way does not at all exist. It was further averred that Gram Panchayat had issued construction permission after issuing notices and the construction was done way back in the year 1995. It was further averred that the way alleged by the plaintiffs is private land situated in between the houses of the defendants and no public easementary right is available or established. It was further averred that complete land mentioned by the plaintiffs is patta sud land of defendant No.2 and there is no evidence available to establish that the open space in between the houses of the defendants is public way. It was further averred that since Gram Panchayat was not made party, therefore, the suit is not maintainable. 4. On the basis of the pleadings of the parties, the learned trial court framed as many as six issues and recorded the oral as well documentary evidence of the parties. It was further averred that since Gram Panchayat was not made party, therefore, the suit is not maintainable. 4. On the basis of the pleadings of the parties, the learned trial court framed as many as six issues and recorded the oral as well documentary evidence of the parties. After hearing the arguments of the parties, the learned trial court decreed the suit vide judgment and decree dated 06.04.2009. 5. Being aggrieved by the judgment and decree passed by the learned trial court, the appellant-defendants filed an appeal before the learned first appellate court. The learned first appellate court allowed the appeal and reversed the judgment and decree of the learned trial court vide judgment and decree dated 28.09.2009. Being aggrieved by the said judgment and decree dated 28.09.2009, the respondent-plaintiffs preferred a second appeal bearing S.B. Civil Second Appeal No.254/2009 before this court and the matter was remitted back to the first appellate court. The learned first appellate court vide the impugned judgment and decree dated 11.08.2011 dismissed the appeal filed by the appellant-defendants and affirmed the judgment and decree dated 06.04.2009 passed by the learned trial court. 6. Being aggrieved by the impugned judgments and decrees passed by the courts below, the appellant-defendants have preferred this civil second appeal. 7. The learned counsel for the appellant-defendants contended that the learned courts below have committed serious perversity and material illegality while passing the impugned judgments and decrees. It is contended that the learned courts below have failed to consider admissions and concessions, significant material available on record and the law point involved in the present matter at the time of passing the impugned judgments and decrees. 8. It is further contended that while deciding the issue No.1, the learned courts below have misinterpreted the title documents of the defendants and wrongly appreciated the oral evidence of the interest witnesses in the circumstances when the independent witness produced by the plaintiffs has failed to establish the averments of the plaint. 9. 8. It is further contended that while deciding the issue No.1, the learned courts below have misinterpreted the title documents of the defendants and wrongly appreciated the oral evidence of the interest witnesses in the circumstances when the independent witness produced by the plaintiffs has failed to establish the averments of the plaint. 9. It is contended that the pattas exhibited by the appellant-defendants clearly shows that the land in question has not been mentioned as " vke jkLrk " and the same has been mentioned as " ?kjksa dk jkLrk " It is contended that the learned courts below have failed to consider the documentary evidence which make it clear that the plaintiffs are showing the private way as a public way and the plaintiffs have failed to establish the land in question as public way. It is further contended that the old title documents exhibited on record have remained unconsidered and the measurement of the total land, possession and title of the defendants is not taken and verified with the old title documents and this non consideration has led to serious error apparent on the face of record. 10. It is further contended by the learned counsel for the appellants that the learned courts below have further failed to consider the ample evidence regarding the availability of other established way to move to various areas of the village and further the so-called independent witnesses examined by the plaintiffs are actually interested witnesses who are residing outside the village. 11. The learned counsel further contended the commissioner report prepared at the request of the appellants by the Gram Panchayat was produced and this court ordered to consider the commissioner report at the time of final hearing. It is contended that the learned courts below have committed serious error of law while not considering the exhibited commissioner report which clearly establishes the substantiate the pleadings of the defendants. 12. The learned counsel further contended that it is an established law that old way cannot be established without any entry in this respect in the record of the Gram Panchayat and no such entry or record has been produced by the plaintiffs before the learned courts below and in the absence of such evidence, the alleged way which is not at all in existence cannot be proved. 13. 13. The learned counsel for the appellants further contended that as per Panchayat law prevailing the State of Rajasthan, all the roads and ways existing in the village vests in the Gram Panchayat and the Gram Panchayat is the custodian of all the roads, therefore, without impleading the Gram Panchayat as a party, the suit is not maintainable. It is further contended that if the respondent-plaintiffs have any grievance regarding encroachment on road, then they have effective remedy to file application or complaint before the Gram Panchayat. 14. The learned counsel for the appellants further contended that the learned courts below have failed to consider the construction permission granted to the defendants and and notices issued by the Gram Panchayat of the year 1995 and the admissibility of the said documents Ex.A/5 and A/6 is not questionable as the same are public documents, therefore, adjudication while considering the same inadmissible is not sustainable in the eye of law. 15. The learned counsel for the appellants further contended that the suit is barred by limitation because construction was raised after due permission of the Gram Panchayat in the year 1995, whereas the suit was filed in the year 2002, therefore, the same is liable to be dismissed. 16. The learned counsel for the appellants further contended that the suit was filed due to mala fide, personal rivalry and ulterior motive of the plaintiffs which is established from the fact that the suit was withdrawn on behalf of plaintiff No.2 Deeparam and had there been any way existing as alleged by the plaintiffs, there was no question of withdrawal of the suit. 17. The learned counsel for the appellants further contended that the learned courts below have acted against the law while granting permission under Section 91 Civil Procedure Code and while not deciding the validity of permission after withdrawal of suit by one of the plaintiff and avoidance of another plaintiff in tendering evidence. 17. The learned counsel for the appellants further contended that the learned courts below have acted against the law while granting permission under Section 91 Civil Procedure Code and while not deciding the validity of permission after withdrawal of suit by one of the plaintiff and avoidance of another plaintiff in tendering evidence. It is submitted that Section 91 Civil Procedure Code provides leave of court in cases of public nuisance when the suit is instituted by two or more persons and special damages is caused to two or more persons, whereas in the present case, only one person, namely Champalal, was aggrieved, therefore, the suit is not maintainable as the requirement of Section 91 Civil Procedure Code is not fulfilled in the present matter, therefore, the impugned judgments and decrees are not maintainable. 18. The learned counsel for the appellants in support of his contentions has relied upon the following judgments:- (i) Jabalpur Development Authority v. V.V. Shrivastava & Anr. [ (2010) 13 SCC 84 ] (ii) State of Rajasthan v. M/s. Bundi Electric Supply Co. Ltd., Bundi [AIR 1970 Rajasthan 36] 19. The learned counsel for the appellants has proposed the following substantial questions of law in the memo of appeal:- (a) Whether, the impugned judgments and decrees based on no legal foundation and evidence, moreover, non consideration and misreading of evidence vitiated adjudication of the entire case ? (b) Whether, the learned courts below have misinterpreted the exhibited pattas of the defendants and misdirected themselves while considering " ?kjksa dk jkLrk " as " vke jkLrk " and this misinterpretation has resulted in complete erroneous adjudication ? (c) Whether, the learned courts below have failed to consider the old title documents alongwith the present pattas and the measurement on the basis of these documents which clearly established the land in question as pattasud land of appellant ? (d) Whether, the learned courts below have erred in considering inadmissible evidence of the plaintiffs as persons tendered in oral evidence are interested and irrelevant witness, and their evidence is not admissible as per law ? (e) Whether, the learned courts below have seriously erred while not considering exhibit-A/7 Commissioner report which throws light on the real factual position ? (d) Whether, the learned courts below have erred in considering inadmissible evidence of the plaintiffs as persons tendered in oral evidence are interested and irrelevant witness, and their evidence is not admissible as per law ? (e) Whether, the learned courts below have seriously erred while not considering exhibit-A/7 Commissioner report which throws light on the real factual position ? (f) Whether, the adjudication made by the learned courts below is illegal as no documents from real custodian of lands i.e. Gram Panchayat are produced by the plaintiffs and in absence of any such documents, the declaration made by learned courts below is illegal or not ? (g) Whether, the learned courts below have erred while not considering exhibit-A/6 and A/7 when same are exhibits and no objections was raised by the plaintiffs at the time of admission of exhibit-A/6 and A/7 and further while not considering that plaintiffs are estopped to raise any objection due to their conduct and further as the documents are public public documents ? (h) Whether, the learned courts below have committed serious illegality and manifest perversity while not considering the suit as not maintainable in the absence of the Gram Panchayat as party to the suit who is custodian of the road or way if any exist ? (i) Whether, the learned courts have erred in law while not dismissing the suit as not maintainable when the suit was filed after seven years of construction made by appellant after getting due permission ? (j) Whether, the learned courts below have failed to consider established rivalry and ulterior motives on part of the plaintiff Champalal and effect of withdrawal of suit on behalf of plaint No.2 Deeparam and non production of the plaintiff No.3 Roop Singh in witness and its effect on the suit filed by the leave of court under Section 91 of C.P.C. ? (k) Whether, the learned courts below have erred in law while not deciding the validity of grant of leave and maintainability of suit under Section 91 of Civil Procedure Code. In light of subsequent events ? (l) Whether the learned courts below have erred in law while not imposing burden of proof to prove the suit within limitation on plaintiff ? In light of subsequent events ? (l) Whether the learned courts below have erred in law while not imposing burden of proof to prove the suit within limitation on plaintiff ? (m) Whether the suit filed by the plaintiff is vitiated and further not maintainable on ground of availability of effective remedies under Rajasthan Panchayat Raj Act & Rules for removal of encroachment if any and further on the basis that admittedly gram panchayat had not taken any action against the appellant ? 20. Per contra, the learned counsel for the respondent-plaintiffs supported the judgments and decrees passed by the courts below. It is contended that the learned courts below have passed the impugned judgments after proper appreciation of the evidence available on record. The impugned judgments do not suffer from any illegality or perversity and the same deserve to be affirmed and this civil second appeal deserves to be dismissed. 21. It is also contended by the learned counsel for the respondent-plaintiffs that Section 18 of the Easementary Act is not applicable in this case because the respondent-plaintiff did not claim the right of way on the land of the appellant-defendant and therefore, the provisions of Section 15 and 18 of the Easementary Act are not application in the present case. He further contended that the learned counsel for the appellants has tried to make out an entirely new case at the stage of second appeal because there were no pleadings before the trial court in the written statement that in Ex.1 map, 'O' to 'P' land was left by the appellant-defendants for the convenience of their own use and even in the first appeal, it was not the ground of challenge that due to the typing error 6 yard way was shown in the sale-deed. The learned counsel for the respondent-plaintiffs further contended that the judgments cited by the learned counsel for the appellant in the case of State of Rajasthan v. M/s. Bundi Electric Supply Co. Ltd., AIR 1970 Rajasthan 36) (supra) is based on different facts and has no bearing on the present case. 22. The learned counsel for the respondent-plaintiffs contended that when there was no case for admission of the appeal, there was no ocassion for this court to decide the application under Order 41 Rule 27 Civil Procedure Code. Ltd., AIR 1970 Rajasthan 36) (supra) is based on different facts and has no bearing on the present case. 22. The learned counsel for the respondent-plaintiffs contended that when there was no case for admission of the appeal, there was no ocassion for this court to decide the application under Order 41 Rule 27 Civil Procedure Code. The learned counsel for the respondent-plaintiffs in support of his contention relied upon the judgment of this court in Champalal v. Jasnath [2003(1) DNJ [Raj.] 5]. 23. I have considered the rival contentions raised by the learned counsel for the parties and perused the impugned judgments passed by the courts below as well as the record of the case. I have also gone through the judgments cited by the learned counsel for the appellants. 24. The respondent-plaintiffs filed a suit before the trial court, which was decreed and in the appeal, the judgment of the trial court was reversed by the first appeallate court. Against the order of the first appellate court, the respondent-plaintiffs filed a second appeal bearing S.B. Civil Second Appeal No.254/2009, which was allowed by the co-ordinate Bench of this court and the case was remanded back to the first appellate court and the first appellate court vide order dated 11.08.2011 dismissed the appeal of the present appellants, hence, the present second appeal has been filed. 25. Before the trial court, the plaintiffs filed Ex.1 document alongwith the plaint showing 'O' 'P' land as the land used by the plaintiffs and other villagers. In the written statement, the appellants have not averred that this land was left by themselves for their own use and on the contrary, it was pleaded in the written statement that there is no way as shown in the Ex.1 on the spot and it was further pleaded that the land marked as 'X''Y''Z' earlier belonged to different owners and it was ultimately purchased by Sayar Kanwar and her husband. 26. The main contention of the learned counsel for the appellants is that the evidence of the witnesses cannot be said to be reliable because they were interested witnesses and they cannot be believed. I have perused the statements of the witnesses. Firstly, the evidence of the witnesses cannot be discarded simply on the ground that they are interested witnesses. 26. The main contention of the learned counsel for the appellants is that the evidence of the witnesses cannot be said to be reliable because they were interested witnesses and they cannot be believed. I have perused the statements of the witnesses. Firstly, the evidence of the witnesses cannot be discarded simply on the ground that they are interested witnesses. Secondly, in the document Ex.8A and patta bearing No.56, it has been specifically shown that in the south side of the property, there is " ?kjksa dh xyh ". So far as contention regarding typographical error is concerned, the same cannot be accepted and it was not the case of the appellants even upto the stage of first appeal that the land was left open by the appellants themselves for use of their property, therefore, the arguments advanced by the learned counsel for the appellants do not carry any force. Moreover, so far as the commissioner report submitted with application under Order 41 Rule 27 Civil Procedure Code is concerned, page No.1 to 3 of the same does not bear the signagure of any person and only page 4 bears the signagure of Tikho Devi, who has certified the copy and in view of the fact that this was never the case of the appellants before the trial court or the first appellate court that the land in question was left open by them for their own use, the commissioner report is not at all relevant for deciding the real issue involved in the matter. The arguments advanced by the learned counsel for the appellants do not carry any force and no substantial question of law involved in the appeal and there is only question of fact whether there was a way of 6 yards as shown in Ex.1 and there is concurrent finding of both the courts below on this fact. The appeal filed by the appellants is bereft of any merit and the same deserves to be dismissed. 27. Consequently, this civil second appeal is dismissed and the judgments and decrees passed by both the courts below are affirmed. No order as to costs.Appeal dismissed. *******