C.M Lodha, J.:— 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 rear 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. The suit was resisted by the defendants on the ground that they had not made any encroachment in the ‘verandah’ or on the foot-path and that they had taken the land on which they had put tea stall on rent from the Municipal Council, Alwar and were in possession of the same as lessees. They also pleaded that no nuisance whatsoever was caused to the plaintiff on account of their running a tea stall in the ‘verandah’ and on the foot-path. They also raised pleas that the suit was not maintainable without the consent of the Advocate General under sec. 91, C.P.C, and that in any event the plaintiff was estopped by his laches and acquiescence to ask for the relief of mandatory injunction.
3. After recording the evidence produced by the parties, the learned Munsiff decreed the plaintiff's suit and issued a mandatory injunction against the defendants directing them to remove all the structures including the in shed, oven, tea stall, tables, chairs etc. from the foot-path (patri) and a wooden plank (Takhat) lying in the ‘verandah’ attached to the defendants' shops. She also issued a permanent injunction against the defendants restraining them from making any encroachment or putting any obstruction in the ‘verandah’ and on the foot-path in future.
4. Dis-satisfied with the judgment and decree of the trial court the defendants preferred an appeal to the Court of District Judge, Alwar, and the plaintiff also filed cross-objections against that part of the judgment of the trial court whereby the defendants had been allowed to keep two ovens in the ‘verandah’ close to their shops. The learned District Judge, Alwar by his judgment dated 21-2-1969 allowed the defendants' appeal in part and set aside the decree of the trial court regarding removal of the obstructions in the verandah, but upheld the decree of the trial court regarding removal of the stall and other obstructions from the foot-path. The cross-objection filed by the plaintiff was however dismissed. Aggrieved by the judgment of the learned District Judge the defendants have filed second appeal to this Court. The plaintiff has, however, made no grievance against the dismissal of his suit regarding the alleged encroachment and obstruction in the ‘verandah’.
5. The only question for determination now in this second appeal is whether the decree passed against the defendants regarding removal of encroachment and obstruction from the foot-path is justified.
6. That the defendants have put up a tea stall on the foot-path and have also placed an oven and tables and chairs on it is not disputed. On the other hand it is asserted that the plaintiff has no right to get the defendants restrained from occupying the foot-path and getting their tea stall removed from there.
7. Learned counsel for the appellants has urged the following points in support of this appeal:
(1) That the Municipal Council, Alwar was a necessary party to the suit, and the plaintiff having not impleaded the same inspite of an objection to that effect by the defendants the suit must be dismissed.
(2) That the lower appellate court has made out a new case in appeal by holding that the ‘patri’ (foot-path) in question is a ‘public street’;
(3) That the plaintiff has failed to prove any special or substantial injury to him.
(4) That the plaintiff is estopped by his laches and acquiescence from asking for any relief by way of mandatory or permanent injunction.
8. I shall deal with these points seriatim.
9. It is urged by the learned counsel for the appellants that the land in question which has been described as ‘patri’ throughout the litigation vests in the Municipal Council, and the defendants have taken the same on rent from the council, and consequently the Municipal Council was a necessary party to the suit. In support of his contention the learned counsel has relied upon Benares Bank v. Bhagnwandas (1), Haran Sheikh v. Ramesh Chandra (2), Subharaya v. Seetha Ramaswami (3) C. Pillai v. D.M Devasahayam (4), and Thakurji Shri Mahadevji v. Nathu Mali (5).
10. On the other hand learned counsel for the respondent has argued that the plaintiff has not claimed any relief against the Municipal Council, and it is possible to pass an effective decree in absence of it. He has submitted that the decree can be executed without the presence of the Municipal Council. In support of his contention learned counsel has relied upon Deputy Commissioner v. Rama Krishan (6), and an unreported Single Bench decision of this Court in S.B Civil Regular First Appeal No. 151 of 1960 Ramgopal v. Biharilal decided on 16th October, 1969.
11. In order to appreciate the question regarding necessary parties it is necessary to bear in mind that the ownership of the Municipal Council to the ‘patri’ in question is not disputed by either party. The defendants' case, however, is that since they have taken the ‘patri’ in question on rent from the Municipal Council, it was necessary to implead the Municipal Council in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The question, then, is whether the defendants have succeeded in proving that they are the lessees from the Municipal Council, Alwar in respect of the foot-path in question which they have occupied? In this connection the learned counsel for the appellants has placed strong reliance on the alleged receipts of rent Ex. A.1 to Ex. A.108 D.W 6 Satyanarain an employee of the Municipal Council Alwar has been examined to prove these receipts. He has stated that his duty is to recover ‘Tehbazari tax’ and that the receipts Ex. A.1 to Ex. A.108 were issued and signed by him. He has deposed that the land in question is used by the defendants for preparation of sweets etc., and there is also a stall of the defendants lying on this land. He has, however, admitted in cross-examination that it is not his duty to recover rent from monthly tenants. He has also stated in the course of cross-examination that if any person is in unauthorised occupation of any land belonging to the Municipality, he realises tax from him also, but, that he has no authority to put any person in possession of such land or to dispossess any person who has already occupied it. On perusal of the receipts Ex. A.1 to Ex. A.108 it transpires that a few annas had been charged on account of tax rent from the defendants for putting some articles such as furniture or some food-stuff on the land in question, Page: 280D.W 1 Ramnarayan (defendant) has stated that he had taken on rent a part of the foot-path (patri) 9′ × 7′ from the Municipal Council on 19-1-1950. He admits that he has also put an oven there and prepares ‘samoshas’, ‘pakoras’ etc. on it. He further states that he had taken the permission of the Municipal Council to occupy the ‘patri’ in question on the occasion of the visit of the President of India to Alwar. In the course of cross-examination he has deposed that the Municipal Council, Alwar had allotted the land in question to him and that for the year 1948–1949 the allotment charges were fixed at Rs. 5/- per month. However, he denies knowledge as to which officer had passed this order of allotment. He, admits that no agreement was executed in this connection. He also states that he had made an application to the Municipal Council for allotment on which orders for allotment were passed. There is no other evidence regarding allotment. It is remarkable that neither any agreement of lease nor any order of allotment by the Municipal Council has been produced. The utmost that can be said in favour of the defendants on the basis of the receipts Ex. A.1 to Ex. A.108 is that they occupied a part of the ‘patri’ in front of their shops without there being any allotment or lease in their favour and some charges were realised from them. From these receipts, however, no inference of lease or license can be drawn in favour of the defendants, more so, when D.W 6 Satyanarayan, who issued and signed the receipt Ex. A.1 to Ex. A.108 has himself admitted that he used to charge the tax from anybody who would occupy the land owned by the Municipality with the permission or without the permission, and that he was not competent to permit any body to occupy such land or to dispossess any body from the occupation of such land. Then again D.W 1 Ramnarayan himself has stated that he had occupied the portion of the ‘patri’ in front of his second shop when he purchased it in the year 1959. The receipts relied upon by the defendants do not indicate the location of the portion of the ‘patri’ in occupation of the defendants for which the tax had been charged. Thus to put in brief the defendants have failed to establish the alleged lease of the foot-path in question in their favour by the Municipal Council, Alwar, and all that can be said is that he occupied the foot-path for carrying on his business and the Municipal Council did not take any action to remove the encroachment and the tax Collector charged some sort of tax from him. In this connection it may be relevant to refer to the statement of P.W 7 Shri Inder Lal Mittal, who had been a president of the Municipal Council, Alwar and was also a Municipal Councilor on the date he appeared in the witness-box. He has stated that some shop-keepers had encroached upon the foot-path and that he had taken proceedings for removal of such encroachment. In this state of evidence there is no alternative but to hold that the defendants have failed to establish that they are in possession of the foot-path in question as lessees of the Municipal Council, Alwar. It is common knowledge that a footpath contiguous to a road is meant for the use of the public and nothing has been shown by the appellants that the Municipal Council. Alwar had power to sanction the impugned encroachment on the foot-path. The Government or the Municipality's proprietary right over the foot-path is subject to all the rights of way and other public rights. Thus apart from the question of alleged lease the defendants have failed to satisfy that the Municipality had any statutory power to authorise any encroachment.
12. From the aforesaid discussion of the evidence it would be clear that the very basis on which the defendants have raised the objection regarding the Municipal Council being a necessary party has not been substantiated. Apart from that on going through the rulings relied upon by the learned counsel for the appellants I have come to the conclusion that they are all distinguishable.
13. 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 v. Bhagwan Das (1) relied upon by the learned counsel has been over-ruled in Deputy Commissioner v. Rama Krishan (6), and it is, therefore, unnecessary to discuss it.
14. Haran Sheikh v. Ramesh Chandra (2) is altogether a different case. It was a suit for declaration of a right of way as a village road and for removal of an obstruction thereon, and one of the persons interested in the servant tenement had not been added as a party to the suit. It was in these circumstances that it was held that no effective decree could be passed without one of the persons interested in the servant tenement being made a party to the litigation.
15. C. Pillai v. D.M Devasahayam (4) dealt with a matter arising out of a suit for cancelling a Government order setting aside a revenue sale and it was held that the Government was a necessary party to the suit as no decree could be passed without its presence. Thus this authority has also no application to the facts and circumstances of the present case.
16. The two tests enunciated by their Lordships of the Supreme Court in Deputy Commissioner v. Rama Krishna (6) to determine whether a certain person was a necessary party in a proceeding are:
1. That there must a right to some relief against such party in respect of the matter involved in the proceeding in question, and
2. it should not be possible to pass an effective decree in the absence of such party.
“One test of the effectiveness of a decree” observed by their Lordships is, “whether that decree can be executed without the presence of creditors as regards property decreed in favour of a claimant.” It was also held that “the eventual interest of a party in the fruits of a litigation cannot be held to be the true test of impleading parties under the Code of Civil Procedure.”
17. Judged by these tests the question is whether the Municipal Council, Alwar is a necessary party in the suit? The plaintiff is seeking removal of encroachment of a part of the foot-path on the ground that the defendants are in unlawful occupation or in unlawful possession of the same, and it would be perfectly possible to pass an effective decree for removal of the encroachment in the absence of the Municipal Council, and such a decree can be executed without the presence of the Municipality, inasmuch as no action will have to be taken against the Municipality for the removal of the encroachment.
18. Looked at from whatever aspect I am firmly of the view that the Municipal Council, Ajmer was not a necessary party to the suit and the reliefs claimed by the plaintiff cannot be denied on account of absence of the Municipality on the record, I, therefore, over-rule the objection in this respect raised on behalf of the appellants.
19. The next question is whether the learned District Judge has made out a new case in appeal by holding that the ‘patri’ in question was a “public street” over which the defendants had no right to make any encroachment. Learned counsel for the appellants has strenuously urged that the plaintiff had nowhere alleged in the plaint that the ‘patri’ in question over which the defendants had put up a tea stall was a part of the public street. It is true that the words “public street” have neither been used in the plaint, nor in the written statement, nor in the course of evidence. But the parties very well knew the implications of the term ‘patri’ which they had used throughout. In this connection learned counsel for the appellants invited my attention to the definition of public street” and “street” given in sec. 3(26) and (32) of the Rajasthan Municipalities Act, 1939. The definition of “public street” runs as under:
“(26) ‘public street’ means any street
(a) over which the public have a right of way or
(b) which has heretofore been levelled, paved, metaled, chanalled, severed or repaired out of Municipal or other public funds, or
(c) which, under any provision of this Act, becomes a public street;” “Street” has been defined as below:
“(32) ‘street’ means any road, bridge, foot-way, lane, square, court, alley or passage accessible, whether permanently to the public or any portion of the public whether a thoroughfare or not, and includes on either side—
(i) the drains or gutters and the land up to the defined boundary, notwithstanding the projection over such land of any verandah or other super-structure,
(ii) every space notwithstanding that it may be private property or partly or wholly obstructed by any gate, post, chain or other barrier, if it is used by any person whether or not occupying any abutting property, as a means of access to or from any public place or thoroughfare;”
20. The argument of the learned counsel is that the foot-path in question can at best be called a ‘street’ and not a ‘public street’. In the course of the evidence, however, it has been made more than clear that the foot-path in question has been constructed over a drainage owned by the Municipality and is used by pedestrians. P.W 1 has stated that the foot-path in question is by the side of the main road and is used by pedestrians. All the witnesses produced by him corroborate the plaintiff. P.W 2 Rameshwar Dayal has stated that he was in charge of the Town Planning in Alwar when the Hope Circus was laid out. He has further stated that there is a ‘patri’ in front of the shops near Hope Circus and the ‘patri’ belongs to the Government and the public has a right to pass over it. So also P.W 3 Shivacharan has stated that the ‘patri’ is meant for the use of the public. P.W 5 Mohanlal has stated that pedestrians have to step down from the ‘patri’ to the main road while passing in front of the defendants' shops as the defendants have occupied the portion of the ‘patri’ in front of their shops. P.W 7 Shri Inderlal Mittal a former President of the Municipal Council, Alwar and a Municipal Councilor at the time when his statement was recorded has stated in clear and unequivocal terms that the ‘patri’ is a part of the road and it would be pertinent to point out that no cross-examination worth the name has been directed to these witnesses on this point. The defendant Ramnarayan (D.W 1) had not the courage to deny the fact that the foot-path was meant for the use of pedestrians and gave an evasive reply to the effect that he does not know whether the ‘patri’ is used by the public. D.W 8 Goverdhanlal has admitted in the course of cross-examination that the ‘patri’ in front of the defendants' shop is occupied by the defendants and no pedestrian can pass over it. Thus it is clear that both the parties very well knew the significance of the term ‘patri’. The question whether it falls within the definition of the term ‘street’ or a ‘public street’ is a matter of inference. But the fact remains that the portion of the ‘patri’ in question which is in possession of the defendants is a part of the foot-path or foot-way running parallel to the main road near the Hope Circus? This position admits of no doubt. The main road is used mainly for a vehicular traffic and the ‘patri’ or the foot-path is used for pedestrians. It is abundantly proved on the record that the portion of the foot-path occupied by the defendants is a part of the continuous foot-path running in front of the shops and the whole foot-path is used by pedestrians. It would be noticed that ‘public street’ means a street over which the public have a right of way.
21. I have already observed above that the foot-path in front of the plaintiff and the defendants' shops is used as a way by pedestrians. In this view of the matter I have come to the conclusion that the finding of the learned District Judge that the foot-path in question is a part of the public street is correct and the learned District Judge cannot be said to have made out a new case to the prejudice of any of the parties. Both, the defendants as well as the plaintiff very well knew the nature of the subject matter of the suit. I am further fortified in my view by the averments made by the defendants in para No. 1 of the additional pleas of the written statement wherein it was stated that the suit was not maintainable in absence of sanction from the Advocate General under sec. 91 of the Civil P.C The question of applicability of sec. 91, C.P.C arises only when there is a question of public nuisance which includes an obstruction to a public thoroughfare.
22. I do not see any force in the second objection also raised by the learned counsel for the appellants and hereby over-rule it.
23. The next question to be considered is whether any special injury has been caused to the plaintiff on account of which he is entitled to get relief in the present suit? Admittedly an oven, a tea stall, a few tables and chairs for service have been placed on the foot-path in front of the defendants' shops. It is also not denied that Page: 283the pedestrians approaching the plaintiff's shop from the side of the defendants' shops cannot come to the plaintiff's shop straight and must step down on the main road so as to reach the plaintiff's shop. The grievance of the plaintiff that his frontage has been violated on account of the encroachment by the defendants on the foot-path is however not correct, as the frontage of the plaintiff's shop is clear. What has been obstructed is the access to the plaintiff's shop from the foot-path.
24. Learned counsel for the appellants has strenuously urged that the law applicable to a ‘high way’ pressed into service by the lower appellate court has no application to the facts and circumstances of the present case, and in this connection he has placed reliance on Gopala Krishna v. Narasimbam (7), and Biswanath Sinha v. S.K Banerji (8). On the other hand learned counsel for the respondent has urged that the plaintiff is in immediate neighborhood of the alleged encroachment and is entitled to get the encrochment removed. It is argued that he has special cause of action in the matter irrespective of whether he has proved any special damage or not? In this connection he has placed reliance on Dasrath Mahto v. Narain Mahto (9), Pahlad Maharaj v. Gauri Dutt Marwari (10), Bhauram v. Ladu Singh (11), and Sheonarayan v. Dindayal (12).
25. In Bhauram v. Ladu Singh (11) it was observed—
“In a case of obstruction of a pathway, be it a public nuisance or not, a person may show that such obstruction should be removed as he lives in proximity where obstruction has been caused and his right to go by a particular way to his place of residence or to his field is affected and would operate so injuriously on him as to entitle him to come to a court of law praying for its removal independently of the provision of Sec. 91(1) C.P.C”
26. In Dasrath Mahto v. Narain Mahto (9) the road-way passed the houses of the plaintiffs, and of the defendants. The latter proceeded to make certain constructions on their land and encroached upon the thoroughfare. The defendants's plea that they had made no encroachment was found to be false. Further it was alleged that as the plaintiffs had suffered no inconvenience whatsoever they had no cause of action. The trial court as well as the lower appellate court found that the encroachment had caused no inconvenience. In these circumstances it was held by the learned Judges that the plaintiffs had not suffered any loss but it is idle to say that their rights had not been seriously infringed. In this connection the learned Judges referred to the following passage from an earlier case of that court, Pahlad Maharaj v. Gauri Dutt (10).
“But as has been recognised in principle and confirmed by the Privy Council, a person in the immediate neighbourhood and entitled to use a local public thoroughfare has a special cause of action and that irrespective of whether he has proved special damage or not. The real principle is as I have said that a person of an immediate community or section of the public who is deprived of the amenity provided for that particular section may be deemed to have suffered loss without proof of such loss.
27. I have carefully gone through the judgment reported in Gopalakrishana v. Narasimham (7) on which learned counsel for the appellants has placed very strong reliance, and have come to the conclusion that the facts of that case are altogether distinguishable and the principle laid down therein has no application to the present case. In that case about 10 years prior to the filing of the suit the defendants and others had erected a small temple and a pail on the road near a big tree. The plaintiff alleged that the said unauthorised encroachment had obstructed his access to the road and light and air to the premises. The defendant's case was that the said encroachments were made with the consent of the plaintiff. The learned Judges found that there was an encroachment over the public high-way. It was also found that neither the plaintiff nor the members of his family nor his business, had been in any way affected, nor his prospects of improvement of had been retarded Having arrived at these findings the learned Judges also came to the conclusion that the plaintiff was an active participant in the joint endeavour and consciously stood by for a period of above 10 years during the gradual progress of the institution. It may be observed that the learned Judges found that the access to the plaintiff's premises which was considered as a private right was not in any way affected as Page: 284the construction put by the defendants left unaffected 5′ 6″ road abutting the plaintiff's premises and the plaintiff had access to every bit of the high-way abutting the premises. While discussing the question of infringement of any right of the plaintiff on account of the impugned constructions the learned Judges made reference to a number of English decisions and one of the cases relied upon by them is Cobb v. Saxby, 1914-3 K.B 822 (c), where the plaintiff and the defendant were the respective owners of two adjoining houses abutting on a street which was a public highway and the plaintiff affixed boards at right angle to the front of his house and close to the defendant side wall covering the wall to a height of twenty-two feet from the pavement. Rawlett, J. held in a counter claim made by the defendant that the act of the plaintiff was a wrongful interference with the private right of the defendant. He extended the scope of a party's right of access to the highway to the right to pass from the premises to the highway and vice versa including the right of access to a wall of the premises if there is no door or other opening.
28. In the present case it is clear that the plaintiff's right as regards the footpath adjoining his shops including the right of access from that direction on which the encroachment has been made by the defendants has been violated. Thus I do not see any thing in the Andhra Pradesh case which may go negative the contention raised on behalf of the plaintiff in the case in hand. Moreover the question of right of a person living in proximity of the obstruction caused on the pathway was not under consideration in the Andhra Pradesh case. The plaintiff no doubt based his case on the ground of special damage to himself. The case of nuisance has been held by the court below to be not proved. Nevertheless, since his right of access from the side of the foot-path is adversely affected in the present case and he carries on his business in proximity where obstruction has been caused he is entitled to succeed on account of infringement of his right of access, I am, therefore, of opinion that the plaintiff has succeeded in showing that his right of user of the foot-path in question has been violated, and he is entitled to get relief on that basis.
29. This brings me to the consideration of the last objection raised on behalf of the appellants. It is submitted that the defendants have been in occupation of the foot-path in question and have been carrying on business in tea, sweetmeats etc. for a long time and the plaintiff never raised any objection in that connection and consequently the plaintiff is estopped by his laches and acquiescence to ask for the discretionary remedy of mandatory injunction. Learned counsel has relied upon the A.P case referred to above in this connection also. Suffice it to say, that the facts of the A.P case were quite different inasmuch as it had been found in that case that the plaintiff was an active participant in the encroachment and stood by for a long period of 10 years and had thereby acquiesced in the act and was consequently guilty of laches so as to be not entitled to any equitable relief. In the present case, however, there is nothing to show that the plaintiff had in any way abetted the defendants to make the alleged encroachment. It is true that a large number of shop-keepers in this part of the town of Alwar had started making similar encroachments and it has come on the record that some of them were prosecuted under the police Act. P.W 7 Shri Inder Lal Mittal has stated that it had been his constant endeavour to remove such encroachments and notices had also been issued to such persons who had made unauthorised occupation on the foot-path. Some judgments have also been put on the record to show that prosecution in this connection had taken place and the wrong deers were punished. Be that as it may, the appellants have failed to point out any such act or omission on the part of the plaintiff to substantiate the plea of estoppel against him. The infringement of the plaintiff's right is a continuous wrong for which there is no limitation prescribed and merely because the encroachment had been there for some time it cannot be said that the plaintiff had in any way waived his right regarding the use of the foot-path in the proximity of his shop. I am, therefore, unable to accede to the admission of the appellants in this behalf.
30. No other point was pressed on behalf of any of the parties. As a result of the fore-going discussion I find no substance in this appeal and hereby dismiss it. But in the circumstances of the case I leave the parties to bear their own costs.
31. Learned counsel for the appellants prays for grant of leave to appeal to Division Bench. However. I do not consider it a fit case for grant of leave. The prayer is disallowed.