SAROOR SHAH KHAN Vs. MOHD MEHTAB

JUDGEMENT

(1.) BY way of this appeal under Section 100 CPC, the appellant has challenged the two concurrent judgments i.e. judgment and decree dated 30.09.2009 passed by the learned Civil Judge, Delhi in suit No.220/2009 and the other dated 11.07.2011 passed by learned ADJ, Delhi in RCA No. 90/2009 whereby the appeal challenging the judgment and decree passed by the learned Civil Judge has been dismissed.

(2.) BRIEFLY, the facts relevant for the disposal of present appeal are as under:- The appellant herein and respondent no. 3 were plaintiffs before the learned trial court and had filed a suit for permanent and mandatory injunction stating therein that respondent no. 3 i.e. plaintiff no.1 before the trial court is the resident of House No. 1346, Gali Nai Wali, Punjabi Phatak, Billimiran, Delhi-6 and appellant i.e. plaintiff no. 2 before the learned trial court is the resident of House No. 1394, Katra, Bajwarian, Billimiran. The house No. 1393, Katra, Bajwarian is situated between the house of the appellant and the respondent no. 3 i.e. plaintiffs. It was alleged that the respondent herein i.e. defendant no. 1 before the learned Civil Judge had purchased the said property and was doing construction by using heavy iron girders and the construction was being done by him without any site plan of MCD i.e. respondent no. 2 herein and the said construction was of great danger to the lives and properties of the appellant and respondent no. 3/plaintiffs. They had alleged that despite repeated requests made by them, the respondent no. 1 had not stopped the illegal construction and the cause of action had arisen in April, 1991. By way of said suit, prayer was made for a decree of permanent injunction thereby restraining respondent no. 1/defendant no.1, his agents from raising any illegal and unauthorized construction in the suit property bearing No. 1393, Katra, Bajwarian, Billimiran. The prayer was also made for a decree of mandatory injunction directing the respondent no. 1/defendant no.1 to demolish the unauthorized and illegal construction from the suit property. The respondent no. 1/defendant no.1 had filed a written statement denying the allegations made by the appellant and respondent no. 3/plaintiffs. It was alleged that the subject matter had already been decided in appeal filed by the respondent no. 1/defendant no. 1 before the Appellate Tribunal vide Appeal No. 295/1980 decided on 17.02.1992. It was also denied that appellant having used any iron girders or illegal construction as was alleged.

(3.) THE learned Appellate Court has also appreciated the entire evidence on record and has held that there is absolutely no evidence on record to prove that the construction raised by respondent no. 1 was unauthorized in nature. THE relevant portion of the judgment is as under:-