The court issued a mandatory injunction to remove an unauthorized structure on a public road based on evidence and the defendant's admission regarding the ownership of the road, despite the defendant's resistance on grounds of non-joinder of the municipality and delay in seeking remedy.

M. P. CHANDRAKANTARAJ, J.

( 1 ) THIS is a defendants' appeal against the concurrent findings of the Courts below.

( 2 ) THE plaintiff approached the Civil Court for a mandatory injunction to remove the shed unauthorisedly constructed by the defendant in the middle of the public road obstructing the smooth passage and use of the road as well as dumping of cow dung close by causing obnoxious smell making it difficult for the plaintiff and the members of his family to live there. The defendant resisted the suit inter alia on the ground that the municipality was not made a party and which was the owner of the road and that he had not put any cow dung pit and the suit was, therefore, liable to be dismissed.

( 3 ) AFTER framing appropriate issues, the trial Court mainly on the strength of the evidence given by P. W. 3, the Chief Officer of the Town municipal Council, Mudalagi, and the report of the Court Commissioner came to the conclusion that no pit as such had been dug in the middle of the road for dumping cow dung, but there was unauthorised construction which had been removed by the municipality on the complain of the plaintiff and other denizens of the municipality. It was in that circumstance the plaintiff was forced to move the Court. The version of the plaintiff has been believed by the court having regard to the Commissioner's report. Therefore, mandatory injunction was issued calling upon the defendant to remove the structure unauthorisedly constructed, which is not disputed by him.

( 4 ) THEREFORE, aggrieved by such a decree in favour of the plaintiff, he approached the lower appellate Court. The lower Appellate Court has confirmed the findings of the trial Court. No question of law as such has been formulated though under the heading grounds, every ground has been put in an interrogatory form. That does not constitute formulation of a question of law which is required to be formulated by the appellant under Section 100 of the CPC.

( 5 ) THE only possible question that may arise for consideration is whether the suit was bad for non joinder of parties, i. e. , the Town Municipal Council, mudalagi. It is seen from the statement of the defendant that he admitted that the road belonged to the municipality. If that admission was there, there was no need to join issue on that question and make the municipality a necessary party. Therefore, even such a question were to be raised as a question of law, it stands answered by the admission made by the defendant himself in his written statement. IT was next urged that the plaintiff had approached the Court after a long time and therefore as held by this Court granting of mandatory injunction being discretionary, if plaintiff stood by and allowed a construction that impeded him and did not seek remedy in the Court quite early enough, the Court would hesitate to grant the mandatory injunction. Indeed in the case of Mirza Sattar Baig v Tajuddin, 1964 mysore Law Journal (Supplement) 879, it was so held but in this case it is not only the plaintiff but the other citizens of the town who had complained to the municipality and had the shed unauthorisedly constructed in the middle of the road removed. They were not standing and waiting and suffering the intrusion made by the unauthorised construction. That decision is not of much assistance to the appellants.

( 6 ) NO substantial question of law arises for consideration. The appeal is misconceived and it is dismissed.

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