LODHA, J—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 plaintiffs 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 plaintiffs 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 plaintiffs right to access and frontage has been violated and a serious and substantial damage is caused to the plaintiffs 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.

3. 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.

4. After recording the evidence produced by the parties, the learned Munsiff decreed the plaintiffs 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.

5. 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.

6. The only question for determination now in this second appeal is whether the decree passed against the defendants regarding removal of encroachmen

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