JUDGMENT

S.N. Singh, J. - This is a plaintiff's second appeal in a suit for permanent injunction praying that defendants 1 and 2 who are the Municipal Board, Ujhani, and the Executive Officer, Municipal Board, Ujhani, be restrained from demolishing the shop in question, the details of which have been given in the plaint and from evicting the plaintiff from the shop aforesaid.

2. The case of the plaintiff, in brief, is that the plaintiff is a tenant of a shop which appertains to a tomb of Nawab Abdullah Khan, situate in mohalla Narainganj, Ujhani, to the east of Bareilly-Mathura Road. The plaintiff alleged that the defendants 1 and 2 had wrongly served the plaintiff with a notice under Sections 186 and 211 of the U. P. Municipalities Act with ulterior motives for demolition of the building and removal of the materials against which the plaintiff appealed but his appeal was rejected by the Additional District Magistrate Budaun. The plaintiff further said that this order of the Additional District Magistrate, Budaun, cast cloud on the plaintiff's rights and the plaintiff had apprehension that his shop would be demolished. It was said that the notice issued by defendant No. 1, the Executive Officer, under Sections 186 and 211 of the U. P. Municipalities Act was invalid. Since no new construction had been made, there was no necessity to obtain the sanction of the Board. On these allegations the present suit was filed for the relief mentioned above.

3. The suit was contested by defendants I and 2 on the ground that the plaintiff was not the tenant of the shop in suit. He was only a trespasser, as such he was not entitled to maintain the suit. It was also said that the plaintiff had not given correct boundaries of the shop which had been given in the written statement. It was asserted in the written statement that several persons had begun making unauthorised constructions over a large piece of land shown in the map appended to the written statement without the permission of the Municipal Board. When these encroachments were discovered notices for demolition were given to all of them by the defendant-Board after a resolution of the Board had been passed. It was further said that the plaintiff appealed against the said notice under Section 318 of the U. P. Municipalities Act and the appeal was rejected by the Additional District Magistrate, Budaun, and the order of the Additional District Magistrate was final under Section 321 of the U. P. Municipalities Act. The Municipal Board further asserted that the construction in dispute was on the land of the public road which is a public street within the meaning of the Municipalities Act and the plaintiff had made new unauthorised constructions which he was not entitled to do. Various other pleas were raised by the defendant-Board with which we are not concerned in this second appeal.

4. On the pleadings of the parties the trial court framed as many as 9 issues which are as follows:

1. Whether the land in suit forms part of the Maqbara land and if so are the plaintiffs its lessee ?

2. Whether the Municipal Board, Ujhani, is the owner of the land in suit or it forms part of the public street ?

3. Whether the suit is barred by Section 326 of the Municipalities Act as no notice was given ?

4. Whether the suit is barred by Section 321 of the Municipalities Act ?

5. Whether the plaintiff has made any constructions, if so, have they made them with the permission of the Municipal Board ?

6. To what relief, if any, are the plaintiffs entitled ?

7. Whether Wilayat Husain was a cotenant of Chand. If so is he entitled to continue this suit ?

8. Whether Ghulam Mohammad is the Mutwalli of the Wakf Maqbara Nawab Abdullah Khan ?

9. Whether notice was served on the plaintiff by the defendant No. 2, if so, was it served on behalf of defendant No. 1, and is valid. Can defendant No.3 challenge the validity of the notice?

5. After having framed the above issue the trial court took up issues 4 and 9 which were about the a