LODHA, J - (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. 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. 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 tinshed, 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. 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'. 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. 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. 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. I shall deal with these points seriatim. 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 Counsil 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 vs. Bhagnwandas (l), Haran Sheikh vs. Ramesh Chandra (2), Subharaya vs. Seetha Ramaswami (3) C. Pillai vs. D. M. Devasahayam (4), and Thakurji Shri Mahadevji vs. Nathu Mali (5 ). 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 vs. Rama Krishan (6), and an unreported Single Bench decision of this Court in S. B. Civil Regular First Appeal No. 151 of 1960 Ramgopal vs. Biharilal decided on 16th October, 1969. 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, D. W. 1 Ramnarayan (defendant) has stated that he had taken on rent a part of the foot-path (patri) 9' x 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 be 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 1948-49 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 Councillor 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 proprietory 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. 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 arc all distinguishable.
(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. Haran Sheikh vs. 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 servient 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 servient tenement being made a party to the litigation. G. 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. The two tests enunciated by their Lordships of the Supreme Court in Deputy Commissioner vs. 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. " 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. 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. ;