JUDGMENT 1. - This second appeal under Section 100 CPC is directed against the judgment and decree dated 16.1.2008 passed by the Civil Judge (Jr.Div.), Sumerpur, whereby the suit filed by the plaintiffs-respondents for permanent and mandatory injunction has been partially decreed and against the judgment and decree dated 24.5.2011 passed by the Additional District Judge, Sumerpur, whereby while appeal filed by the respondents has been dismissed, the cross-objection filed by the appellant has also been rejected. 2. The facts in brief may be noticed thus : the plaintiffs Khimaram and Bansi Lal filed a suit for permanent and mandatory injunction with the averments that in village Sanderao on National Highway No.14, a bus stand and temple of 2 Ramdev Ji is situated, on South to the said temple a public way comprised in Khasara No.1118 ad measuring 0.04 Htr. is situated and is the main way for residents of Sanderao for going into their fields. The way was about 60-65 fts. wide, however, the defendant has constructed the shops and has reduced the same to 30-35 fts. and is bent upon further narrowing the same; the defendant has constructed a toilet about six months back on the Southern side of the public way; as the defendant is powerful and husband of the Sarpanch, nobody in the village opposed; the defendant is bent upon constructing further shops on the public way and therefore, the defendant needs to be injected from trespassing on the public way; the toilet constructed by trespassing on the public way ad measuring 6' x 5' needs to be removed which is causing obstruction in the way and the same has been constructed without seeking permission from the competent authority and therefore, a mandatory injunction be issued. 3. The defendant filed written statement and disputed the averments made in the plaint. It was claimed that the way in question was never wider than 23ft. and the same has never been obstructed by the defendant and toilet has not been constructed as alleged; the toilet is 15 years old and the same has been repaired about two years back and the same stands on the land owned by the temple trust; the shops-in-question were existing over 25-30 years and were in dilapidated state and therefore, the same have been got reconstructed by the temple 3 trust. The new construction is taking place in the land owned by the temple trust. The land of the way has not been obstructed and ultimately, it was prayed that the suit be dismissed. 4. On the pleadings of the parties, the trial court framed four issues. On behalf of the plaintiffs, four witnesses were examined and certain documents were exhibited. On behalf of the defendant, six witnesses were examined and certain documents were exhibited. 5. After hearing the parties, the learned trial court came to the conclusion that the plaintiffs failed to prove that the shops were being constructed in Khasara No.1118, the suit filed by the plaintiffs was maintainable and that toilet-in-question was existing on the public way. Consequently, the suit for permanent injunction was rejected and mandatory injunction for removal of the toilet was passed by the trial court. 6. Feeling aggrieved, the plaintiffs filed first appeal and the defendant filed cross-objections. After hearing the parties, the First Appellate Court rejected both the appeal as well as cross objection and maintained the decree passed by the trial court. 7. It is submitted by learned counsel for the appellant that the courts below were not justified in directing demolition of the toilet-in-question; the status of the toilet was equivalent to that of the shops, once the court below did not find any substance in the case of the plaintiffs qua the shops, the decree qua the toilet could not have been passed; the courts below without coming to the conclusion that the toilet was causing any obstruction could 4 not have passed the decree for mandatory injunction and consequently, the appeal requires consideration / admission. 8. Reliance was placed on Suraj Prakash and Ors. v. Jagdish Raj and Ors. : AIR 1981 J & K 79 and Gyanchand and Anr. v. Mohanlal and Ors. : AIR 2007 MP 258 . 9. 8. Reliance was placed on Suraj Prakash and Ors. v. Jagdish Raj and Ors. : AIR 1981 J & K 79 and Gyanchand and Anr. v. Mohanlal and Ors. : AIR 2007 MP 258 . 9. I have considered the rival submissions.The trial court based on the evidence available on record came to the conclusion that the shop which was received by the defendant by way of will ad measure 20' x 10' and the toilet has been constructed on the public way, the claim of the defendant that the toilet along-with the shops was received by them by way of will was negated by the trial court observing that when patta of Babu Lal Sindhi pertain to 20' x 10' only, he could not have bequeathed more than that, the shops came in the ownership of the defendant about 5-7 years back and thereafter only the toilet has been constructed and therefore, the defendant was not entitled to maintain the said construction. The First Appellate Court reiterated the findings of the trial court. 10. In view of the concurrent findings of fact recorded by the two courts below, regarding which the learned counsel for the appellant has failed to point out any perversity, the same does not give rise to any substantial question of law. 11. The submission made by learned counsel for the appellant regarding applying the same yardsticks qua the toilet, which has been adopted for the shops has no basis, as apparently the toilet does not form part of the land which could have been 5 bequeathed in favour of the defendant and as the same is standing on a public way, the appellant cannot be permitted to encroach on a public way. 12. The further submission regarding lack of finding recording obstruction etc. on the public way is also without any basis, suffice it to indicate that the very fact that the construction stands on public way itself is sufficient to order for its removal and the appellant cannot claim any right for maintaining such a construction on public way. 13. The judgments cited by learned counsel for the appellant has no applicability to the facts and circumstances of the case.In view of the above discussion, there is no substance in this appeal and the same is, therefore, dismissed.Appeal Dismissed. *******