( 1 ) THIS Second Appeal has arisen from the suit brought by the respondents Nos. 1 to 4 against the appellant and Palitana municipality for a mandatory injunction ordering removal of cabin erected by the appellant on a footpath forming part of a public street in the area known as Chhella chakala in Palitana.

( 2 ) WHILE admitting Second Appeal the court had formulated substantial questions of law as under:1. Whether the lease granted by Palitana municipality to defendant No. 1 in 1957 was valid and whether it could be challenged 21 years after it was initially granted?2. Whether the suit for a mandatory injunction seeking relief in this behalf is maintainable?

( 3 ) THE above-referred to substantial questions of law arise for the consideration of the Court in the background of following facts.

( 4 ) KHUSHAL Bhuvan Jain Dharmshala is a public trust. It is registered as a charitable trust under the provisions of the Bombay public-Trusts Act, 1950. The property of the trust is situated on Taleti road near chhella Chakala in Palitana. Nuns and monks belonging to Jain religion are residing in the caravanserai. To the north of building of Khushal Bhuvan Jain dharmashala, there is a public road after leaving footpath having width of 5 feet. To the west of said property also, there is a footpath and then there is a road. On the north-west corner of Dharmashala, there is a footpath of Palitana Municipality. Thus, it is a common ground that Khushal bhuvan Jain Dharmashala is having frontage on two public roads. Earlier a mobile hand lorry was kept by the appellant on the disputed land and tea-stall was being run by him. However, the appellant made an application dated October 30, 1957 to palitana Municipality to get the land forming part of footpath situated near Khushal bhuvan Jain Dharmashala on lease. His application was accepted by the Chief Officer of Palitana Municipality who recommended to the Chairman of the Municipality to grant lease of land in favour of the appellant. Accordingly, the Chairman of palitana Municipality by order dated November 19, 1957 leased the land admeasuring 50 square feet on the footpath adjacent to Khushal Bhuvan Jain dharmashala to the appellant. It was decided by Palitana Municipality to charge rs. 2/- per month by way of licence fee. The appellant erected wooden cabin and started running tea-stall there. The appellant thereafter made sitting arrangement for customers by placing wooden benches and chairs on the footpath. The appellant had also employed 3 to 4 servants for running the tea-stall. The customers visiting the tea stall and the servants started causing nuisance to the nuns and monks by uttering filthy abuses. They started behaving in such a manner that it became difficult for nuns and monks to pursue religious activities peacefully. Moreover, the appeallant used to do business till late in the night. According to the plaintiffs, Palitana Municipality had no authority in law to lease part of the footpath to anyone so as to cause obstruction and nuisance in the use of property of dharmashala which abuts on the footpath and public road. It was the case of the plaintiffs that on inquiry being made the plaintiffs were made to understand by officers of Palitana Municipality that the cabin was permitted to be there for a short period and would be removed within a reasonable time. As the cabin installed by the appellant was not removed, the plaintiffs served notice dated February 8, 1976 to the Municipality calling upon it to remove the encroachment permitted to be made by it on the foorpath. On receipt of the notice, Palitana Municipality gave reply but did not take steps to remove the encroachment. Under the circumstances, the respondents Nos. 1 to 4 who are original plaintiffs filed Civil Suit No. 91 of 1976 in the court of learned Civil Judge (J. D.) at palitana for issuance of prohibitory injunction restraining the appellant from using the land forming part of footpath for run