TAHERAKHATOON D Vs. SALAMBIN MOHAMMAD

JUDGEMENT

(1.) This appeal has been preferred by the plaintiff in the suit against the judgment and decree of the Bombay High Court in S. A. No. 543 of 1979, dated 19-1-1987. By that judgment the Second Appeal was allowed, the judgment dated 16-3-1979 of the lower appellate Court decreeing the plaintiff-appellant's suit was set aside and the judgment of the trial Court in Civil Suit No. 151 of 1975 passed by the Third Joint Civil Judge, Junior Division, Aurangabad dated 23-2-1977 was restored. The dispute between the parties, who are neighbours, covers an extent of 25' x 11' upon which the defendant constructed two rooms. The appellant's case is that the above extent is part of the appellant's property and that the defendant-respondent has encroached upon it and has made the construction of the two rooms. The suit is for possession of the area of 25' x 11' and for directing removal of the two rooms. Pending these proceedings, the plaintiff-appellant died and her legal representatives were brought on record.

(2.) The brief facts of the case are as follows: The plaintiff-appellant purchased open space 75' x 25' from the common-owner, one Mohd. Ali on 14-1-1966 for Rs. 700 under a registered sale deed in Mohalla Shahbazar in Aurangabad town. According to the Plaintiff, she constructed two rooms on Western side of the purchased portion leaving some open space on the eastern side and long thereafter, the defendant purchased land from the same vendor, Mohd. Ali on the eastern side on 13-12-1967 and allegedly occupied the disputed area of 25' x 11' in question on 30-12-1967. Subsequently, defendant is said to have illegally constructed those two rooms on this area without the permission of the Municipality. Plaintiff alleges she complained to the Town Surveyor who came to survey the properties but he did not consider her claim but advised her to go to a Civil Court. The plaintiff issued notice on 14-6-1974 and the defendant sent reply refusing to vacate or remove the construction. The suit was, therefore, laid on 14-2-1975 for possession of the land, for mandatory injunction for removal of the two rooms and for damages for 3 years, at Rs. 600 in all.

(3.) The defendant-respondent contended that prior to his purchase under sale deed dated 13-12-1967, he had entered into an agreement of purchase on 10-2-1962 for an extent of land of 53' x 23 yards 2' which included the disputed portion and that he had constructed the two shops long before 14-1-1966, when the plaintiff purchased the vacant piece of land by the side of the land which he had purchased under the agreement. According to him, there was no question of any encroachment on 30-12-1967.