SAT PAL NANDA Vs. NATHU RAM

JUDGEMENT

(1.) The judgment will also dispose of Regular Second Appeal No. 1049 of 1977, as both the appeals have arisen out of the same judgment and decree of the Senior Subordinate Judge, with enhanced appellate Powers, Gurdaspur, dated March 19, 1977.

(2.) Nathu Ram, plaintiff, claiming himself to be the tenant under the defendants, filed the suit for the grant of the mandatory injunction directing the defendants not to block his passage to the godown. The suit was contested inter alia on the ground that the plaintiff was not the tenant, as alleged; rather he was a trespasser. It was also pleaded that the plaintiff was not entitled to relief sought for. The trial Court found that the plaintiff was the tenant under the defendants and, therefore, the suit as such was maintainable. Consequently, the suit was partly decreed to the extent that the wall from point I to Z would be constructed at least at a distance of 4 feet from the gate of the godown. Dissatisfied with the same, both the parties filed separate appeals. The learned Senior Subordinate Judge, with enhanced appellate powers, dismissed the appeal filed by the defendants but accepted the appeal filed by the plaintiff and modified the decree of trial Court to the effect that the wall I to J shall remain at the then site shown in plan, Exhibit D.1, but on its northern side it shall be slashed nine inches so as to provide a clear space of three feet to the godowns DEGA during all business hours as prescribed by the Government rules. Sat Pal and Prem Kumar shall not cause any obstruction or blockade in such three feet wide passage of Nathu Ram in any manner whatsoever. Dissatisfied with the same, the defendants have filed these two appeals in this Court.

(3.) The gravamen of the learned counsel for the appellants is that in the appeal filed by Nathu Ram, plaintiffs Prem Kumar, defendant, was not made a party and, therefore, no decree could be passed against him. Admittedly, no such objection was raised before the lower appellate Court. In any case, both the defendants, viz., Prem Kumar and Sat Pal, filed the appeal before the lower appellate Court against the judgment and decree of the trial Court, and, thus, were present before the lower appellate Court while deciding both appeals. In these circumstances, there is no merit in this appeal.