KRISHNARAOPRALHADRAO DESHMUKH Vs. DATTOPANTRAMCHANDRARAO DESHMUKH

JUDGEMENT

(1.) INVOKING the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1976, in this second appeal the original plaintiff has challenged the judgment and decree passed by the appellate court on 8. 9. 1987 in Reg. Civil Appeal No. 24 of 1982 reversing the judgment and decree passed by the trial Court on 20. 3. 1982 in Reg. Civil Suit No. 12 of 1979, directing the defendant to remove the disputed construction as shown in the map appended to the suit within a month.

(2.) HEARD Mr. Badiye, learned counsel for the appellant (original plaintiff ). None present for the respondent.

(3.) ON perusal of the judgment and decree passed by the trial Court, it would reveal that the plaintiff had instituted a suit for mandatory injunction asking the defendant to remove the construction on the site shown by letters W P GH and G in the map appended to the plaint and for a perpetual injunction that he should always keep open the common courtyard shown by letters Wa P D A in the map for the use and access of the plaintiff. The trial Court granted decree in favour of the plaintiff asking the defendant to remove the disputed construction as shown in the map appended to the suit within a month on the ground that there was consent and acquiescence. It is relevant to note that in para 6 of the judgment, the trial Court mentioned that the defendant in his written statement admitted that the house originally was a joint family property and was partitioned and did not dispute the shares as averred. He has also admitted that the plaintiff purchased the share of Ramchandra Rajeshwar. The share in his possession and in possession of his brother Anandrao are also admitted. However, according to him, he has no knowledge about the details of the partition and that the contents of para no. 1 of the plaint do not tally with the map provided to him.