LODHA, J.—The subject matter of this protracted litigation is a sal a sort of parlour standing adjacent to the temple of Shree Neelkanth Mahadeo, located outside Chandpole Gate in the city of Jodhpur. There is another temple of lord Krishna, situated very near to the sal in question. This temple of Lord Krishna is alleged to belong to the Vaid Nai Community (barbers) of Jodhpur. The present suit for issue of a mandatory injunction was instituted by Shyamdas in the Court of Munsiff, Jodhpur City on 24-8-1959 against the representatives of the barber community. It was alleged in the plaint that the sal in question belonged to the plaintiff, who owned the temple of Neelkanth Mahadeo and that previously it had been decided by the then Chief Court of the former State of Jodhpur vide its judgment dated 8-10-1926, Ex. 3, against the representatives of the barber community that the sal was attached to the temple yet some barbers had taken forcible possession of the same from the plaintiff in October 1949 whereupon a criminal case was instituted against the barbers who entered into a compromise on 26-2-1952 and handed over possession of the sal back to the plaintiff. It was further alleged that about 10 days before filing of the suit the defendants had forcibly demolished a portion of the sal and made alterations in it by constructing a pucca gate in place of an old window. It was therefore prayed that the defendants be directed to restore the sal to its original condition and to remove the encroachment made thereon by them by putting "pattis etc. on it. The suit was resisted by the defendants who asserted their own title to the sal as well as possession over it since generations. Certain other legal objections such as bar of limitation, insufficiency of court fee etc. were also taken.

2. After recording the evidence produced by the parties the trial court dismissed the suit. It did not give any finding as to the ownership and possession over the sal, though it held that the sal was being constantly used by members of the barber community for the purpose of going to their temple, that is, the temple of Lord Krishna. It further held that the plaintiff had never raised any objection to the use of the sal by the barber community and there was no reasonable ground for him to have any objection to the conversion of the window existing in the sale into a gate for the convenience of all the users of the sal. He further found that the plaintiff had brought the suit after great delay in as much as he did not raise any objection while the construction was going on for a fort-night. In this view of the matter, he refused to issue a mandatory injunction in favour of the plaintiff.

3. Aggrieved by the judgment and decree by the trial court Narayandas and Balkishenlal as trustees of the temple of Neelkanth Mahadeo filed appeal, as the original plaintiff Shyamdas had by then died, and the learned District Judge, Jodhpur by his judgment dated 30 10-1964 affirmed the judgment and decree by the trial court. However, unlike the trial court he gave his finding as to ownership of the sal and held that the sal was proved to be the property of the defendants. He further found that the appellants had at no time exclusive possession over it. He also came to the conclusion that no case for demolition of the impugned construction was made out, and in the result, he upheld the judgment and decree by the trial court. Hence this second appeal by the plaintiff Narayandas.

4. Learned counsel for the appellant has urged, in the first instance, that the defendants were debarred from asserting their title to the sal in question by virtue of the judgement of the Chief Court of the former State of Jodhpur dated 8 10-1926 marked Ex. 3 by the principle of res judicata. He has also argued that in any case the plaintiffs title to the sal in dispute is established. He has also urged that the appellant has succeeded in establishing his possession over the sal. The last point urged

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