PARMESHWARI DEVI Vs. OGDHYAN HARBHAJAN RASTOGI

JUDGEMENT

(1.) This second appeal is directed against the judgment of the Additional District Judge dated 3/01/1981 by which he haddismissed the appeal brought by the appellant challenging the judgment anddecree of the learned Sub-Judge dated January 10. 1975 by which he hadgranted a mandatory injunction requiring the appellant to remove anddemolish the platform marked AFG and iron shutter marked EF existing infront of the tenanted shop of the appellant and the permanent injunction isalso granted restraining the appellants from using the land in front of theshop for any purpose other than the common passage after demolishing theplatform and the iron shutter. This shop of the appellant which is tenantedby him is situated at the end of a blind lane. In front of the shop the disputed chabutra and iron shutter have been put.

(2.) The case of the owner was that this common land in front of theshop was meant for use of all the customers and the shopkeepers and appellant had converted this portion of the land in front of the shop to his exclusive use. A finding of fact has been given by the two Courts below thatthis particular part of the open land in front of the shop was not part of thetenanted premises. That finding of fact is not being challenged beforeme now.

(3.) Learned Counsel for the appellant has, however, vehemently argued that a plea had been taken in the written statement that the landlord hadacquiesced in the existence of the said platform as well as wooden door whichexisted earlier and which was than changed in the iron shutter by the appellant and no finding has been given by the two Courts below on this aspect ofthe case. Issues framed in the suit were as follows :