JUDGMENT
K.C. Gupta, J.
1. Heard. The case of the appellants is that there is a street at point ‘A’ abutting on the eastern side of their houses as shown in the red site plan and it had been existing for the last more than 20 years and they had been using it peacefully and without any objection. Even the Municipal Committee, Tarn Taran, had laid sewerage and Water Supply pipes in the streets and they had also passed resolution dated 17.10.1995 for providing drainage and flooring at the cost of Rs. 50,000/- in the street. However, the respondent (defendant) without any right, title or interest was threatening to close the street by raising a brick wall at point ‘A’ for which it has no legal right.
2. The respondent (defendant) contested the suit and stated that the suit was bad for non-joinder of necessary parties and the appellants had no cause of action. It further stated that the appellants had encroached upon the State property.
Accordingly, the following issues were framed:-
1. Whether there is a street as alleged by the plaintiffs? OPP
2. If issue No. 1 is proved, whether the plaintiffs are entitled to injunction prayed for? OPP
3. Whether the suit is not maintainable in the present form? OPD
4. What is the effect of non service of notice under Section 80, CPC? OPD
5. Relief.
3. The parties adduced their evidence. The trial Court after discussing the evidence held under issues Nos. 1 and 2 that the appellants were using the street situate on the eastern side of their houses and the respondent had no right to close the same. Accordingly, vide judgment and decree dated 3.12.1998, the suit was decreed.
4. Aggrieved by the said judgment and decree, the defendant filed an appeal which was accepted by the learned Additional District Judge, Amritsar vide his judgment dated 20.11.2002 and in fact he set aside the judgment and decree of the trial Court by holding that the State of Punjab was a necessary party and it should have been impleaded in the array of the respondents (defendants) and as such he remanded the case for a fresh trial after impleading the State of Punjab as a party.
5. Aggrieved by the said judgment and decree, the plaintiffs have filed the present appeal.
6. I have heard Mr. B.S. Mahajan, learned counsel for the appellants, Mr. R.K. Joshi, Additional A.G. Punjab and carefully gone through the file.
7. This is a suit for permanent injunction. The plea of the appellants is that there existed a street on the eastern side of their houses and the respondent-college wasted to close the same by raising a wall at point ‘A’. The State of Punjab is not at all a necessary party because in this case ownership of the street in question is not to be deter mined. The main allegation of the appellants is that they had been using the street for the last 20 years without any objection and they are entitled to use the same. In such circumstances, the finding of the learned Additional District Judge, Amritsar that the State of Punjab is a necessary party is not warranted by law and as such, the same is set aside. The case is remanded to the learned Additional District Judge, Amritsar for a fresh decision on merits in accordance with law. The parties through their counsel are directed to appear before the learned Additional District Judge, Amritsar, on 6.10.2003.