MANILAL JIBHAI Vs. ISHVARBHAI SAMALBHAI

JUDGEMENT

(1.) The plaintiff filed this action to have a declaration that the land described in the plaint was street land and to obtain a mandatory order directing defendant No. 1 to remove an otla made by him on the land. The Municipality of Nadiad city, in which the property was situated, was made a party defendant. Defendant No. 1 asserted that his otla existed since a long timti; that plaintiff had no interest in the land; that the land wan held to be of his ownership by the City Survey Officers and that no damage was caused to the plaintiff.

(2.) The trial Court held that the suit land was a public street and that plaintiff was entitled to sue to have the encroachment made by defendant No. 1 thereon removed.

(3.) The first defendant appealed. In his judgment, the Judge said:- Assuming that the otla land forms part of a public street land, the question is whether defendant No. 1's act amounts to a public nuisance. I think, it does, vide I. L, R, 20 Mad. p. 433 and 24 Bom. L. R. p, 807, which lay down that appropriation of a part of n public road or building on it), amounts to a public nuiaanoe. Plaintiff is, therefore, not competent to sue without complying with the provisions of Section 81 of the Civil Procedure Code.