RAMNARAIN Vs. NANDLAL

JUDGEMENT

(1.) THIS is a defendants second appeal arising out of a suit filed by the plaintiff-respondent for mandatory injunction for removal of a tea stall and other obstructions placed by the defendants in the verandah and the foot-path in front of the two shops of the defendants situated near Hope Circus in the town of Alwar and also for permanent injunction restraining the defendants from making any encroachment in future in the verandah as well as on the foot-path.

(2.) THE plaintiff owns two shops with a verandah near the Sabzi Mandi, Hope Circus, in the town of Alwar. Contiguous to the plaintiff's shops are the two shops with a verandah occupied by the appellants. THE shops occupied by the defendants belong to Girraj Prasad, but have been taken on rent by the defendants, who carry on the business of preparing tea, sweets etc. in these shops. THE plaintiff's case is that the defendants have unlawfully encroached upon the foot path described as a 'patri' by placing a tea stall thereon and also tables, chairs, etc. on it, and have also obstructed the passage in the 'verandah' as a result of which the plaintiff's right to access and frontage has been violated and a serious and substantial damage is caused to the plaintiff's business. It was alleged that the encroachment made by the plaintiff in the 'verandah' as well as the foot-path was unlawful and unauthorised and it was, therefore, prayed that a mandatory injunction may be issued for removal of the encroachment and obstruction in the 'verandah' as well as on the foot-path, and, as already stated above, a permanent injunction was also prayed for in this respect.

(3.) IN Thakurji Shri Mahadevji v. Nathu Mali (5) the plaintiff had claimed the suit land as his property and the defendant opposed the suit on the ground of being in possession of the property as a lessee from the Municipality. IN these circumstances when the plaintiff claimed himself to be the owner of the property against the Municipality, the Municipality was held to be a necessary party. The Allahabad case Benares Bank vs. Bhagwan Das (1) relied upon by the learned counsel has been over-ruled in Deputy Commissioner vs. Rama Krishan (6), and it is, therefore, unnecessary to discuss it.