Dr. Vineet Kothari, J. - (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: - - The present second appeal has been filed by the appellant/plaintiff in this Court on 09.01.2007, in which notices were issued to the respondents by a coordinate bench of this Court on 16.01.2007 and by an interim order, it was directed that both the parties shall maintain status quo with respect to suit property or land in question. The matter was taken up for final hearing at the admission stage today.
(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: - - "Before a space can be held to be a "street" under the Punjab Municipal Act, there must be a dedication by the owner to the public. Where it is established that a verandah in front of a shop was a passage accessible to the public and it was being used for about two decades by the public for passing and re -passing, it must be held that the owner of the shop has dedicated the verandah to the public use. It is being used for passing and re -passing by public at large and as such is a "street" in terms of S. 3(13)(a). The owner has, thus, surrendered his rights in the property for the benefit of the public. The user of the property is and always shall be with the public. Any space, passage, verandah, alley, road or footway dedicated to public by the owner for passing and re -passing, partakes the character of a "street" and no longer remains under the control of the owner. The owner has no right at all times to prevent the public from using the same.";