A L RANJANE Vs. RAVINDRA ISHWARDAS SETHANA

JUDGEMENT

(1.) FIRST Appeal No. 1086 of 1991 and First Appeal No. 121 of 1993 have been filed against the judgment and decree dated 29th/ 30/08/1988 passed by the City Civil Court at Bombay, in Short Cause Suit No. 948 of 1983. Against the first appeal preferred by the Municipal Corporation, respondent No. 1 has preferred cross-objections. I am disposing of both the aforesaid first appeals and cross-objections by this common judgment.

(2.) FEW facts which are material for the purpose of disposing of these first appeals are as under :-Respondent No. 1 in First Appeal No. 1086 of 1991 who is the original plaintiff, is the owner of the property house bearing No. 535, Kalbadevi Road, Bombay, known as Kanta Terrace. The plaintiff is residing in the said property on the 3rd floor and part of 4th floor. On the ground floor of the said property there are shops. This building faces Kalbadevi Road and adjoining to the northern side of this building is a street called Jambulwadi. Kalbadevi road is running just opposite to this building in north-south direction. Jambhulwadi is a bye-lane or a street adjoining to the northern side of the building running in east-west direction. Jambulwadi is about 33 ft. width and in length is about 125 ft. from Kalbadevi road. From western side i. e. from Kalbadevi road, the said Jambulwadi street comes to a dead end on the eastern side. It is the case of the plaintiff the present respondent No. 1 that at the junction inside Jambulwadi the present appellant original defendant No. 3 constructed a stall at a distance of about 2 ft. from his building. In the said stall defendant No. 3 - the present appellant started carrying on a tea stall. It is the case of the plaintiff that defendant No. 3 has unauthorisedly constructed the aforesaid stall and is carrying on the said, tea stall. The plaintiff, therefore, filed the aforesaid suit for the declaration that the stall erected by the 3rd defendant is an authorised structure and sought a mandatory order against the defendants to remove the said structure. The plaintiff also asked for permanent injunction restraining defendant no. 1 from allowing the said stall to continue to remain in the vicinity of the plaintiff's property.

(3.) DEFENDANTS Nos. 1 and 2 filed the written statement and they contended that defendant No. 3 was carrying on sugarcane juice business from the year 1970 at the same place where defendants Nos. 1 and 2 granted permission to defendant No. 3 to construct the stall. According to defendants Nos. 1 and 2 subsequently in the year 1982 defendant No. 3 sought permission to allow him to construct the stall for carrying on tea stall and after taking into consideration the situation where defendant No. 3 was asking for construction of stall and after taking into consideration the factor as to whether the said stall, if allowed, will cause traffic obstruction, respondent No. 2 granted him permission to construct the stall and gave him licence to prepare the tea and serve the tea. It is also contended on behalf of defendants Nos. 1 and 2 that while granting the aforesaid licence and permission defendant No. 1 also put certain conditions in the permission through their Health Department from the hygienic point of view. It was further contended on behalf of defendants Nos. 1 and 2 that the permission granted by defendants Nos. 1 and 2 to install the stall is perfectly legal and there is no substance in the allegations made, by the plaintiff.