ORDER

This second appeal has been preferred by the appellant / plaintiff under Section 100 of Code of Civil Procedure, 1908 (in short, 'CPC') being aggrieved by the impugned judgment and decree dated 14.08.2023 passed by the Principal District Judge, Mandsaur in RCA No.1694/2022, whereby the judgment and decree dated 18.11.2022 passed by the II Civil Judge, Senior Division, Mandsaur in civil suit in RCSA No.2400069A/2015 has been dismissed, which has filed for decree of permanent and mandatory injunction.

2. The brief facts of the case are that appellant / plaintiff had instituted a suit against the respondent / defendant No.1 for permanent and mandatory injunction, wherein it was pleaded that defendant No.1 has a shop bearing No.55 at Delhi Darwaja Marg, Mandsaur, which was owned by the defendant No.1 and was purchased from one Manish Kumar and the boundary of the aforesaid shop shown as "North - 10 feet width road", but the respondent No.1 had dismantled the old structure and constructed new shop at the same place, but while reconstructing a new shop, the defendant No.1 has narrowed the width of disputed passage by encroaching thereon, which is causing trouble to the public. Defendant No.2 / respondent has granted permission of construction to defendant No.1 only as 10 feet in width. Plaintiff has also made a complaint of such encroachment, but defendant No.2 did not take any action in that regard, therefore, it is prayed that by way of permanent and mandatory injunction the encroachment made by the defendant No.1 be removed and he be restrained from doing so in future also.

3. Respondent No.1 / defendant in his written statement has opposed the prayer made by the plaintiff by stating that appellant / plaintiff has no locus standi to file the present suit, because he has no right and title over the disputed passage, which was part of his shop. Respondent No.2 / defendant in his written statement has also stated that defendant No.1 has encroached over one feet of land of the disputed passage and a notice was given to him and he has removed the said encroachment.

4. The trial Court after giving opportunity of hearing to both the parties, on the aforesaid pleadings, framed issues and permitted both the parties to lead their evidence. Trial Court after recording the evidence and hearing both the parties, dismissed the suit filed the appellant / plaintiff. Thereafter, plaintiff had preferred an appeal before the first appellate Court, but same was also dismissed on merit by stating that plaintiff has no locus standi to come before the Court for the same relief and suit is not maintainable. Being aggrieved by the same, this second appeal has been filed.

6. Learned counsel for the appellant contended that impugned judgment and decree passed by both the Courts below are erroneous in nature. The lower Court was not considered that in the sale deed, the passage of 10 feet was mentioned in the north direction. The report of the Commissioner was not considered by the Court below and both the Courts below and ignored the evidence of plaintiff (PW-1). As per the law laid down in the case of Mariamma Vs. C.P. Thomas ILR, Kerala 226, it has been held that "a single individual can file a simple suit for injunction to restrain the wrongdoer from proceeding with such an illegal act, therefore, impugned judgments and decrees passed by Court below be set aside."

7. Heard counsel for the appellant at length and perused the record of both the Courts below with due care.

8. From perusal of the record of trial Court, it reveals that trial Court has considered the evidence of the plaintiff Jinesh (PW-1) and Commissioner report. It is also found that spot inspection has been carried out by the Commissioner and thereafter, submitted his report (Ex.P-1). As per report, it has been found that defendant No.1 / respondent has not encroached on any land. Plaintiff has not examined any expert witness to establish that there was alleged encroachment done by