GANAPATSA NARAYANSA HABIB Vs. TULJANSA NARAYANSA HABIB

JUDGEMENT

(1.) The building bearing CTS.No.197, Ward No.2, Hubli is in dispute between the parties to this appeal. It is described as Item No.(1) in the plaint presented by the appellant. It is admittedly in possession of defendant No.(1) who is the respondent before me.

(2.) The suit is for possession of the said property, and also for permanent injunction against deiendcnt No.(1), restraining him from making any structural alterations or demolition thereon, alternatively claiming 1/3 share in all the suit properties on the ground that the parties to the suit are members of a Hindu undivided family. So far as the disputed property is concerned, the plaintiff's primary case is that it was allotted to his share by the family partition of the year 1944 and that defendant No.(1) has been ever since in the permissive occupation and of late, he has un-authorisedly demolished a portion with a view to make a lot of structural alterations therein. With these allegations, in the Court below, he obtained an ad interim temporary injunction against defendant No.(1).

(3.) Defendant No.(1) in his written statement admitted the partition pleaded by the plaintiff, but he said that the said property was allotted to his share and not to the plaintiff. He further said that he is in possession of the house as an owner. In his affidavit in support of the application for vacating the injunction, he has stated that the said property is very old and the kitchen portion of it has already collapsed and it therefore requires urgent reconsruction and that any addition or reconstruction to the building would not cause loss to the plaintiff. He also filed an undertaking in the Court below that the repairs he effects and the structure or building he erects, would be unconditionally removed without claiming any compensation, in the event of the plaintiff succeeding in the suit. The lower court was very much impressed with this undertaking and relying on the decision of the Kerala High Court in Thomas v. Parvathi, AIR 1962 Ker 18, it vacated the temporary injunction. The plaintiff, aggrieved by the order has appealed to this Court.