JUDGMENT

This Second Appeal under Section 100 of CPC is preferred feeling aggrieved by the judgment and decree dated 16.08.2001 passed by Additional District Judge, Begumganj, in Civil Appeal No.16-A/2000 arising out of judgment and decree dated 07.11.2000 in Civil Suit No.35-A/1988 by Civil Judge Class-I, Begumganj, Raisen.

2. Facts in brief are that respondent/plaintiff, Harishankar filed a suit for declaration and injunction regarding the land adjoining to the house of the plaintiff.

3. As per plaint, towards west side of the house of the plaintiff a Nala passes by and between the Nala and the wall of the plaintiff, common road passes through since many years. The case of the plaintiff was that the defendants were encroaching upon this common road. It was alleged in the plaint that the father of the appellants encroached upon this vacant land to set up small shop. The plaintiff alleged that the father of appellants/defendant were an influential person and after encroaching the plaint collected building material so as to construct a Pucca Hotel. Thus, the plaintiffs prayed for permanent injunction over the suit land and further prayed for injunction restraining the defendant/appellants from encroaching over the suit land. The plaintiffs in their suit also prayed for removal of encroachment.

4. Defendant/appellants filed written statement and contested the case denying all the averments of the plaints. He specifically mentioned that defendant/appellants are residing since 25 years and is running a hotel and betel shop. Plaintiff/respondents wish to harm his business. He is not disclosing the documents of title of his house and prepared a map as per his own wish. Defendant/appellant has never been evicted from the land of his possession. His political affiliation does not give a cause of action. Notice under Section 80 of CPC has not been served on the State Government. State Government is necessary party.

5. Plaintiff/respondent arraigned the State Government as a party initially but later on he deleted the State Government from the array of the defendant.

No cause of action arises on 10.05.1995. Suit be dismissed.

6. Trial Court framed the five issues and recorded the evidence of Hari Singh as PW-1, Chhotelal as PW-2, Battulal Gupta as PW-3 and Advocate Rajendra Jain as PW-4 and admitted the documents Ex.P-1 to P-7 on behalf of plaintiffs. Defendant examined Khilan Singh as DW-1, Umshankar as DW-2 and retired Patwari Jaggannath Prasad as DW-3.

7. On appreciation of evidence on both sides, trial Court concluded the issue Nos.1 to 3 in favour of plaintiff and concluded the issue No.4 that whether Madhya Pradesh Government is necessary party in the negative and ultimately in issue No.5 concluded by allowing the suit partly in favour of plaintiff granting relief that defendant/appellants will remove the temporary shed, Gumti and stone led in the western side of plaintiff's house within two months and will evict the gallery.

8. First Appellate Court also dismissed the case maintaining the findings of judgment and decree of trial Court.

9. This second appeal under Section 100 is admitted on the following substantial questions of law vide order dated 19.06.2014 :

" 1. Whether the Courts below are justified in passing the impugned judgment and decree overlooking the legal position that the plaintiff has claimed relief over the Nazul land which is public passage and maintainability of the suit looking to the provisions of Section 91 of CPC and without considering the maintainability of suit after the name of State of Madhya Pradesh has been deleted from the cause title and proceedings of M.P. Land Revenue Code was pending before the revenue Court ?"

10. Heard.

11. Learned counsel for respondent supported the judgments of trial Court and First Appellate Court and prayed for dismissal of the appeal.

12. Perused the record.

13. Plaintiff has filed the suit right to way based on easement.

14. As per order 1 Rule 3 (b) of CPC the parties, other than the