A tenant cannot acquire a prescriptive right of easement in land belonging to his lessor, but he may claim a right of easement based on immemorial user.

S.N. Bhargava, J.-This is a second appeal directed against the judgment and decree of Civil Judge, Jaipur Distt. Jaipur reversing the decree passed by Munsif , Bandikui and decreeing the suit of the plaintiff-respondents for injunction.

2. The plaintiff-respondents are tenants of shop No. 57 situated in the grain-market known as ‘Madho Ganj’ in Bandikui town. The said shop formerly belonged to the erstwhile Jaipur State and now, after formation of the State of Rajasthan, it belongs to the State of Rajasthan. There is an open piece ofland measuring 30’ x 13’ in front of the said shop to its East. Towards the North of the said shop, there is a Government building known as ‘Rahdari’ having a window and a smal1 door ‘Pai’. The said building had been purchased by the defendant-appellants. The plaintiff s have been using the open plot ofland in front of their shop for stocking and exhibiting the grains in which business they are dealing for the last 45 years. The defendant Nos. 1 to 4 have made some constructions in the adjoining building after purchasing the same and they proposed to construct shops towards the disputed land and open doors in the southern wall, with a view to get passage over the disputed land and if not prevented, they would interfere with the plaintiff s right of enjoyment of their shop and open land in front of it. Therefore, the plaintiff s filed the present suit for a perpetual injunction

restraining the defendants from opening any door in the southern wall of their building.

3. Thesuit was contested by the defendants Nos. 1 to 4. They have denied that plaintiff s have been using the disputed open plot as alleged in the plaint. They have submitted that it was an open land which was being used by public as a common passage. They have further submitted that the Government of Rajasthan was a necessary party and the Court-fees paid was insufficient.

4. The defendant No. 5 Municipal Board, Bandikui has filed a separate written statement and has admitted first three paragraphs of the plaint wherein the plaintiffs have claimed right of easement. It is further submitted that the Municipal Board has given permission for construction in accordance with law and it was prayed that the suit should be dismissed.

5. On the pleadings of the parties, the following issues were framed: -

1. Whether the plaintiffs have acquired any right of easement in respect of the land B.E.F.C. in the map?

2. If so, whether on this account the defendants can be prevented from raising the proposed constructions?

3. Whether, the suit has been under-valued and if properly valued it will go beyond the pecuniary limits of this Court?

4. Whether the State of Rajasthan is a necessary party?

5. Whether the defendants are entitled to special costs?

6. Relief ?”

6. The learned trial Court decided Issue No. 1 in favour of the plaintiffs to the extent that the plaintiffs have succeeded in proving acquisition of an easementary right over the disputed land but it was further held by the trial Court that this right has not been proved to have been acquired to the exclusion of others, and therefore, it refused to grant injunction prayed for by the plaintiffs, and dismissed the suit. Issues Nos. 3, 4 and 5 were decided in favour of the plaintiffs, and they are all of formal character.

7. Theplaintiffs preferred an appeal which was allowed by the Civil Judge, Jaipur District, who decreed the plaintiffs suit for injunction, with a direction that the defendants Nos. 1 to 4 shall not build in southern wall any construction which will grant them or anybody else a passage to their said building through or over the disputed open plot of land, lying to the south of their building and to the east of the plaintiffs shop, except that they might use the door already existing in the building. Hence, the defendants Nos. 1 to 4 have filed the present appeal.

8. Learned Counsel for the appellants has submitted that the plaintiff-respondents are tenants of the Governme