MADAN KUMAR Vs. NATHDWARA MANDIR MANDAL AND ORS.

JUDGEMENT

(1.) THE appellant/plaintiff, Madan Kumar, has preferred this second appeal aggrieved by the judgment and decree of the first appellate Court dt. 09.11.2006 passed by learned Additional District Judge, Nathdwara, in Civil Appeal No. 05/2005, partly allowing appellant's appeal modifying the judgment and decree dt. 13.01.2005 passed by learned trial Court of Civil Judge (Jr. Division), Nathdwara, whereby the suit (Suit No. 156/1994) filed by the plaintiff/appellant for permanent injunction, was dismissed. While dismissing the suit filed by the appellant, the learned trial Court vide impugned judgment and decree dt. 13.01.2005 has drawn the following conclusion: - -

(2.) THE first appeal filed by the appellant/plaintiff was partly allowed by the appellate Court vide judgment and decree dt. 09.11.2006 in the following manner: - -

(3.) MR . Deelip Kawadia, learned counsel appearing on behalf of appellant/plaintiff submitted that both the Courts below have erred in not granting complete permanent injunction to the plaintiff and the appellate Court has wrongly modified the directions only to the extent that only 3 Ft. wide street may be left in front of eastern side wall of the residential house of the present plaintiff. The present appellant/plaintiff on the eastern side of his house, has constructed certain shops and the land in front of said eastern side of house is being used as a passage, which is said to be 3 Ft. wide for large number of years and that passage leads to the property belonging to Nathdwara Mandir Mandal office gate. He also produced the photographs of the site in question for perusal of the Court and also relying upon the judgment of Hon'ble Apex Court in the case of M/s. Gobind Pershad Jagdish Pershad v. New Delhi Municipal Committee reported in : AIR 1993 SC 2313, in which the Hon'ble Apex Court has held as under: - -