JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 21.09.2011 passed by Additional District Judge, Churu, whereby, the appeal filed by the appellants against the judgment and decree dated 07.03.2006 passed by Civil Judge (Junior Division), Churu decreeing the suit filed by the respondents for permanent and mandatory injunction, has been rejected. 2. The facts in brief may be noticed thus : the respondent Nos.1 to 7 filed a suit on 06.11.1997 against Shubh Karan, Navratan Chotiya and Municipality, Churu seeking mandatory and permanent injunction in respect of a public street as indicated in the map annexed with the plaint seeking removal of encroachment and obstruction alongwith stone slabs and injunction from further obstructing the street and from alienating or transferring the same; it was, inter alia, averred in the plaint that in Ward No.28, Churu in front of Shyam Ji Temple there is a 8 ft. wide public street from east to west in existence for about 60 years, which connects the parallel roads from north to south and plaintiffs are using the said public street; plaintiff Nos.1, 3 and 6 have their plots around the said street and have openings on the said street; the defendant Nos.1 and 2 Shubh Karan and Navratan have placed stone slabs on the said street to the extent of their plot and have closed the way, whereas, in their sale deed way has been shown on the northern side; in all the sale deeds relating to the plots around the said public street, there is a mention of public street; when the said Shubh Karan and Navratan were told to remove the same, they threatened criminal proceedings; it was claimed that the public street is essentially for the enjoyment of the plots. Alongwith the suit application under Section 91 CPC was filed seeking leave of the Court for instituting the said suit. 3. The permission was granted by the trial court on 07.11.1997 and where after procedure under Order I, Rule 8 CPC was adopted and public notice was issued. In pursuance thereto, respondent No.8 Jagdish Prashad and respondent No.9 Prem Ratan got themselves impleaded as plaintiffs. 4. 3. The permission was granted by the trial court on 07.11.1997 and where after procedure under Order I, Rule 8 CPC was adopted and public notice was issued. In pursuance thereto, respondent No.8 Jagdish Prashad and respondent No.9 Prem Ratan got themselves impleaded as plaintiffs. 4. Another application under Section 271 of the Rajasthan Municipalities Act, 1959 ('the Act of 1959') was filed seeking dispensing with the prior notice, as Municipality, Churu was also impleaded as a party, which application was also allowed by order dated 07.11.1997. 5. During pendency of the suit, on an application filed by the plaintiffs under Order 39, Rule 1 and 2 CPC, by order dated 28.04.1998 the application was allowed and the defendants were directed to immediately remove the encroachment and obstruction, remove the stone slabs; not to trespass on the public street and not to alienate the same. However, during pendency of the suit vide sale deed dated 08.09.1998, defendants Shubh Karan and Navratan transferred the land to appellant-defendant Nos.4 and 5 Smt. Ranjana Devi and Smt. Sarita Devi; in the sale deed (Exhibit-4), it appears that out of 8 ft. wide public street claimed by the plaintiffs, 4 ft. land from the alleged public street was also transferred. The said Smt. Ranjana Devi and Smt. Sarita Devi whereafter got themselves impleaded as defendant Nos.4 and 5. 6. The defendant Nos.4 & 5 filed written statement and denied the averments contained in the plaint; it was submitted that the plaintiffs have not sought any declaration regarding easement and no public street exists as there are big trees on the said land; it was claimed that as their sale deed indicates a 4 ft. wide way, the claim of the same being 8 ft. wide is baseless; alternative way is available; the permission under Section 91 CPC and exemption under Section 271 of the Act of 1959 could not have been granted and, therefore, the suit be dismissed. 7. The defendant Nos.1 and 2 remained ex parte and interestingly respondent No.3 Municipality, Churu adopted the written statement of defendant Nos.4 and 5. 8. The trial court framed seven issues. Evidence was led by the parties, wherein, plaintiffs examined seven witnesses and produced documentary evidence. Defendants also produced six witnesses and exhibited certain documents. 9. 7. The defendant Nos.1 and 2 remained ex parte and interestingly respondent No.3 Municipality, Churu adopted the written statement of defendant Nos.4 and 5. 8. The trial court framed seven issues. Evidence was led by the parties, wherein, plaintiffs examined seven witnesses and produced documentary evidence. Defendants also produced six witnesses and exhibited certain documents. 9. After hearing the parties, the trial court came to the conclusion that the plaintiffs were residing around the disputed way and have seen the said way being used; the site map (Exhibit-1), map of the year 1941 (Exhibit-6) and from the sale deeds of the plaintiffs, it was proved that the disputed way was 8 ft. wide and was a public way; the defendant Nos.1 and 2 Shubh Karan and Navratan had encroached on the said land and obstructed the way; the defendant Nos.4 and 5 - appellants after purchasing the land during pendency of the suit have encroached on the disputed way; the defendants have refused to open the encroached way; the suit was not bad for non-joinder and incorrect verification; the suit was within limitation and there was no requirement to seek declaration regarding easement and, ultimately, decreed the suit filed by the plaintiffs directing defendants to remove the encroachment, obstruction alongwith the stone slabs, permit the user of the way and not to obstruct ingress and egress and not to transfer or alienate the same. 10. Feeling aggrieved, the appellants Smt. Ranjana and Smt. Sarita Devi filed appeal, wherein, original defendant Nos.1 and 2 Shubh Karan, Navratan and Municipality, Churu were not impleaded as party. 11. The first appellate court after hearing the parties reiterated the findings recorded by the trial court regarding existence of the public way for over 60 years and encroachment by the appellants and their predecessor in interest on the said public way and no requirement in law to seek declaration regarding easement and, consequently, dismissed the appeal. 12. Feeling aggrieved, the appellants have approached this Court in second appeal. 13. 12. Feeling aggrieved, the appellants have approached this Court in second appeal. 13. It was submitted by learned counsel for the appellants that both the courts below fell in error in decreeing the suit filed by the plaintiffs; it was not proved on record that the so called public way existed for over 60 years; the sale deeds produced by the plaintiffs, oldest of which, pertained to the year 1986 and the suit having been filed in the year 1997, as a period of 20 years had not passed, it cannot be said that under Section 15 of the Easements Act, 1882 ('the Act') the plaintiffs have acquired easementary right by prescription; there were no averments in the plaint seeking easement and, therefore, the suit itself was not maintainable. It was further submitted that Exhibit-1 was only a site map and Exhibits-6 and 7 cannot be co-related with the said Exhibit-1, which has formed the foundation for both the courts below in decreeing the suit/dismissing the appeal; otherwise then seeking easement, the plaintiffs had no right and having failed to seek declaration regarding easement, the suit itself was not maintainable and, therefore, the judgments passed by both the courts below stand vitiated. 14. Opposing the submissions learned counsel for the respondents submitted that both the courts below have concurrently found on the factual aspects and it is not open for the appellants to question the same in the second appeal. It was further submitted that the suit was filed under Section 91 CPC and, therefore, it cannot be said that the same was not maintainable; the plaintiffs did not claim easement, neither there was any requirement to make averments in this regard nor declaratory relief was required; the appellants having purchased the suit property i.e. the 4 ft. wide lane in violation of the injunction passed by the trial court, the sale itself being unlawful, the appellants were not even entitled to be heard. 15. Reliance was placed on Jehal Tanti & Ors. v. Nageshwar Singh : 2013 (2) WLN 68 (SC) (para 13). 16. I have considered the rival submissions. 17. Both the courts have concurrently found based on the documentary evidence available on record that a public way 8 ft. wide exists at the site. The learned counsel insisted on the aspect that the same existed for over 60 years is not based on admissible evidence. 16. I have considered the rival submissions. 17. Both the courts have concurrently found based on the documentary evidence available on record that a public way 8 ft. wide exists at the site. The learned counsel insisted on the aspect that the same existed for over 60 years is not based on admissible evidence. However, a bare look at Exhibit-7, a sale deed dated 16.04.1941 executed by one Smt. Surji in favour of Ganpat Rai and Lunkaran Didwaniya etc., indicated a way on the southern side of the said plot and in Exhibit-1 site map produced by the plaintiffs alongwith the plaint, the subject matter of sale deed has been shown to be owned by Girdhari Lal etc. grand-son of said Ganpat Rai Didwaniya vendee of sale dated 16.04.1941 (Exhibit-6) and the 8 ft. wide lane is claimed on the southern side of the plot in the site map. The said Girdhari Lal plaintiff No.6 appeared as PW-3 and produced a map (Exhibit-6), the said Exhibit-6 is a certified copy obtained from the office of District Collector, Churu from File No.216/1941 pertaining to the office of Tehsil, Churu, which proceedings it was claimed in cross-examination pertained to certain mortgage created by Smt. Surji. The said Exhibit-6 specifically indicated a 4 gaj i.e. 8 ft. (1 gaj=2 ft.) way. 18. Besides the above, the sale deeds Exhibits-2 and 5 produced by the plaintiffs, which pertained to the years 1988 and 1986 respectively also indicated 8 ft. wide lane. 19. Besides the above, Exhibit-3, by which, the land was sold to the predecessor of Shubh Karan and Navratan Chotiya clearly indicated a way on the northern side, therefore, it cannot be said that the findings recorded by the trial court as upheld by the first appellate court regarding existence of way 8 ft. wide was vitiated on any count whatsoever. 20. So far as the maintainability of the suit and not seeking of declaration regarding easement rights are concerned, the argument apparently is without any substance. The easement by very nature is required to be claimed for beneficial enjoyment of the plaintiffs' land in respect of certain land, which is admitted to be owned by the defendants. 20. So far as the maintainability of the suit and not seeking of declaration regarding easement rights are concerned, the argument apparently is without any substance. The easement by very nature is required to be claimed for beneficial enjoyment of the plaintiffs' land in respect of certain land, which is admitted to be owned by the defendants. Once the case of the plaintiffs is that the suit land is part of the public way, there was no requirement to seek easement regarding the said land and both the courts below were justified in deciding the said issue against the appellants. 21. So far as maintainability of the present suit de hors claim of easementary right is concerned, admittedly the suit was filed after seeking permission under Section 91 CPC.Section 91 CPC reads thus:- "91. Public nuisances and other wrongful acts affecting the public. - (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,- (a) by the Advocate-General, or (b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions." 22. The said Section permits institution of a suit by two or more persons aggrieved by a public nuisance for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case. 23. The word 'public nuisance' has not been defined in CPC, however, Section 3(48) of the General Clauses Act, 1897 ('the Act of 1897') defines public nuisance thus:- "3(48) "public nuisance" shall mean a public nuisance as defined in the Indian Penal Code;" 24. Section 268 IPC defines offence of public nuisance as under:- "268. Public nuisance. 23. The word 'public nuisance' has not been defined in CPC, however, Section 3(48) of the General Clauses Act, 1897 ('the Act of 1897') defines public nuisance thus:- "3(48) "public nuisance" shall mean a public nuisance as defined in the Indian Penal Code;" 24. Section 268 IPC defines offence of public nuisance as under:- "268. Public nuisance. - A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage." 25. From a combined reading of Section 91 CPC, Section 3(48) of the Act of 1897 and Section 268 IPC would reveal that any act, which causes common injury, danger or annoyance to the public, who dwell or occupy property in the vicinity is a public nuisance. Though for Section 268 IPC the requirement is that it must necessarily cause injury, but under Section 91(1)(b) CPC even though no special damage is caused to the plaintiffs by reason of public nuisance, the suit is maintainable. 26. In the present case, the plaintiffs have clearly demonstrated that they were living in vicinity of the blocked road and the same was causing common injury, annoyance etc. to them and, therefore, the suit as instituted by them was clearly maintainable. 27. It is surprising that the Municipality, Churu would take a stand, which is wholly contrary to such public stand. The defaint attitude of the defendants Shubh Karan and Navratan Chotiya, the predecessor in interest of the appellants and appellants themselves in transferring a part of the land, which form part of the public way, despite a injunction by the trial court in this regard as noticed hereinbefore also needs to be noticed. The conduct of said Shubh Karan and Navratan and the appellants is also in teeth of the fact that the sale deed executed in favour of the appellants indicate a 4 ft. land, however, the appellants are seeking to even justify obstructing the entire 8 ft. land. 28. The conduct of said Shubh Karan and Navratan and the appellants is also in teeth of the fact that the sale deed executed in favour of the appellants indicate a 4 ft. land, however, the appellants are seeking to even justify obstructing the entire 8 ft. land. 28. Hon'ble Supreme Court in the case of Jehal Tanti (supra) has held act in defiance of interim injunction as unlawful. Be that as it may, the appellants having no right to obstruct the public way 8ft. wide existing at the site, both the courts below were perfectly justified in decreeing the suit/dismissing the appeal. 29. Besides the fact that the findings recorded by both the courts below are pure findings of fact and no substantial question of law arises for consideration of this Court, even on the submissions made by learned counsel for the appellants, there is no substance in the appeal and consequently, the same is dismissed. The stay application is also dismissed. No costs.Appeal Dismissed. *******