The appellate court upheld that the plaintiff lacked a right of access to the northern side of her shop, as the land was classified as parti and not appurtenant to her property.

JUDGMENT :

Hon'ble J.J. Munir,J.

1. This is a plaintiff's second appeal, arising out of a suit for mandatory injunction.

2. The plaintiff, Bajifunnisha, instituted Suit No.217 of 1983, initially against the State of Uttar Pradesh, represented by the Collector, Jalaun at Orai and the Municipal Board, Kalpi, District Jalaun through its Administrator, praying that a decree of mandatory injunction be passed in her favour, directing that the tinshed worked illegal construction, admeasuring 15'x9', shown by letters ABJK in the plaint map, situate to the north of the plaintiff's shop, shown by letters ABHI, be removed by the defendants, rendering the land underlying the offending construction in the same state as it formally was, so that the plaintiff may use it for her access (ingress-egress) in the manner, it was earlier done.

3. Khunni Lal, who was a tenant in one of the plaintiff's shops and had raised the tinshed worked construction denoted by letters ABJK, was impleaded later on as defendant No.3 to the suit. This was done because in substance, the decree that the plaintiff claimed was against Khunni Lal; not the State or the Municipal Board.

4. The facts giving rise to this appeal are these:

Smt. Bajifunnisha, the plaintiff-appellant, who shall hereinafter be called 'the plaintiff', instituted the suit with allegations in the plaint to the effect that she is the owner of a shop, situate in Tarnanganj, Town Kalpi, District Jalaun, denoted by letters ABHI in the plaint map. To the east of the shop under reference, which shall be called 'the shop in question', there are other shops of the plaintiff. To the west of the shop in question, lies land which is parti; to the north, the frontage of the plaintiff's shop and thereafter land described as parti. To the south of the shop in question is a road. The plaintiff is the owner of other shops, besides the shop in question, of which the former owner was the late Mustaq Ali son of Danish Ali, a resident of Mohalla Bhattipura, Town Kalpi, District Jalaun. The shop in question and the other shops are situate on a part of Nazul land, Plot No.4475 and shown in the Khasra Abadi for town Kalpi, relating to the year 1902-1903. A part of Nazul Plot No.4475 aforesaid was taken on lease in the year 1958 by Mustaq Ali.

5. Mustaq Ali got a plan sanctioned by the Municipal Board, Kalpi for the purpose of constructing five shops on the said land. He did construct five shops in accordance with the sanctioned plan. Each of these five shops had a projection (chhajja) sanctioned for them on both sides, to wit, the north and the south. The five shops last mentioned were transferred by way of sale in the plaintiff's favour by Mustaq Ali vide registered sale deed dated 15.09.1975. In this manner, the plaintiff became owner of the shop in question and the other shops that Musaq Ali owned. Her name was entered in the assessment register of the Municipal Board relating to the shop in question as well as the other shops, mutating out Mustaq Ali's rights.

6. The shop in question was let out to Khunni Lal, defendant No.3 to the suit at a rent of Rs.30/-per mensem. Khunni Lal, while in tenancy occupation of the shop in question, raised a wall in front of it i.e. to the north of the said shop, the pucca wall raised running from east to west. The wall was raised as aforesaid in the month of June, 1981 and a tinshed worked roof placed over it, occupying an area 15'x9', denoted by letters ABJK in the plaint map. The aforesaid unauthorized construction was put up after demolishing the plaintiff's projection (chhajja) illegally and unauthorizedly, about which the plaintiff says that Khunni Lal had no right. The plaintiff, accordingly, served a notice upon Khunni Lal on 20.07.1981, saying that the construction raised was without authority and illegal, which ought to be removed. In answer, Khunni Lal, by a reply, informed the plaintiff that the construction that he had raised over land to the north of the shop in question was re