JOSHI RAVISHANKER SHANKERLAL Vs. PATHAK HARSHADRAI V

JUDGEMENT

(1.) AS common questions of law and facts are involved in these appeals, they are disposed of by this common judgment.

(2.) THE facts in brief are that the appellant is the owner of property bearing no. 3065 and properties bearing no. 3064, 3064/1, to 3064/3 belonged to the respondent. Further adjacent to the properties of the respondents, another properties bearing no. 3060 to 3063 and 3059 belonged to the appellant. It is the case of the appellant that the said properties are adjacent to each other and to the eastern side of these properties, an open land admeasuring 32' x 16' is being used by the parties to the suit as passage. It is the case of the appellant that the respondent had made encroachment by constructing otla and balcony over the suit property. THE appellant therefore preferred Civil Suit No. 147/1960 and 148/1960 for removal of encroachments. THE trial Court vide order dated 31.08.1961 directed the respondent to remove the alleged encroachment. Being aggrieved by the said order, the respondent preferred First Appeal No. 289/1961 and First Appeal No. 307/1961 before the lower appellate Court, whereby the lower appellate Court vide order dated 31.12.1962 partly allowed the appeal and granted an injunction directing the respondent to remove the balcony. 2.1. Against the said order, the parties preferred cross appeals being Second Appeal No. 153/1963 and Second Appeal No.530/1963 before this Court, whereby this Court vide order dated 23.06.1970 allowed the appeal preferred by the respondent and dismissed the appeal preferred by the appellant. 2.2. It is the case of the appellant that the despite the fact that there is no right for further construction, the respondent started construction on the norther and southern side of Otla. THE appellant therefore, preferred Regular Civil Suit No. 20 of 1976 before the trial Court praying for prohibitory injunction, THE respondent also preferred Civil Suit No. 118 of 1976 praying for permanent injunction restraining the appellant from obstructing the respondent from raising the construction on the land in question. THE lower appellate Court after hearing the parties and after considering the evidence on record, allowed the suit filed by the respondent and dismissed the suit filed by the appellant in view of the decision dated 26.03.1970 passed by this Court in Second Appeals Nos. 153/1963 and 530/1963 and confirmed by the District Judge, Kheda at Nadiad vide order dated 08.05.1998 passed in First Appeal No. 38/90. Hence, these appeals.