NAWALRAM LAXMIDAS DEVMURARI Vs. VIJAYABEN JAYVANTBHAI CHAWDA

JUDGEMENT

(1.) This appeal under Sec. 100 of the Code of Civil Procedure, 1908 has emanated from suit brought by the respondent for declaration of title to the suit property and injunction directing the appellant to remove water tank, shed etc. constructed over the same.

(2.) The suit property which is plot No. 38/A, admeasuring 995-1 sq.yds. is situated at Bhaktinagar Co-operative Housing Society, Rajkot. The plot originally belonged to the husband of the respondent and after his death the respondent became exclusive owner of the same. In part portion of the plot, five shops are constructed and in one portion there is a residential house comprising one room, a kitchen, latrine, bath-room and varanda. The residential house is let out to the appellant at the rate of Rs. 45.00 per months. Five shops are also let out to different persons and one of the shops is let out to the appellant. According to the respondent, excluding the shops and residential house, the entire plot is open and is in her possession and the respondent was not entitled to make use of any part of the plot except what was let out to him. The plaintiff made grievance that inspite of this fact, the appellant constructed a water tank and shed for keeping motor pump which was to be used for the purpose of drawing water in the suit land and damaged the compound wall. The respondent also pleaded that the appellant had constructed a roof in front of the shop. According to the respondent, the above referred to constructions were made without her knowledge and consent. Under the circumstances, the respondent instituted Regular Civil Suit No. 920 of 1974 in the Court of learned Jt. Civil Judge (S.D.), Rajkot and prayed to declare that the appellant had no right to use or enter into the suit land except the house and shop let out to him. The respondent also claimed injunction directing the appellant to remove the illegal constructions made by him over the land. The respondent further claimed perpetual injunction restraining the appellant from disturbing her from using the suit land.

(3.) The appellant contested suit by filing written statement at Exh. 10. The appellant claimed that he was tenant of the whole suit plot and, therefore, the respondent was not entitled to claim reliefs prayed for in the plaint. It was denied by the appellant that any encroachment over the land was made by him as alleged by the respondent. What was emphasised by the appellant was that deceased Jayvant H. Chavda, who was husband of the respondent, had increased rent and as the appellant had not paid the increased rent, false suit was filed against him. By filing written statement, the appellant demanded dismissal of the suit.