PANNALAL TILOKCHAND KHEDKAR Vs. RUKHABSAO NATHUSAO JAIN

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant, respondent No. 1 in person and the learned Counsel for respondent No. 2 in both the letters Patent Appeal.

(2.) THE appellant/original non applicant No. 2 preferred Letters Patent appeal No. 115 of 1996 against the judgment dated 5-9-1996 passed by the learned Single Judge in First Appeal No. 177 of 1984, by which M. C. A. No. 249 of 1983 was remanded to the District Court for fresh consideration and decision. Letters Patent Appeal No. 56 of 1998 has been preferred by the appellant against the order dated 23-3-1998 passed by the Single Judge in first Appeal No. 476 of 1997 directing that the First Appeal be heard with letters Patent Appeal No. 115 of 1996.

(3.) THE facts which are relevant for the purposes of the present appeal are that respondent No. I/original applicant preferred an application under section 286 (5) of the City of Nagpur Corporation Act, 1948 (hereinafter referred to as C. N. C. Act for brevity) for mandatory injunction against the appellant and respondent No. 2. The Corporation of City of Nagpur (hereinafter referred to as the 'corporation') for removal of unauthorised construction and for restraining the Municipal Commissioner from giving sanction to the building proposal of the appellant. According to respondent No. 1, he owns House No. 585 in Ward No. 36, Ladpura It wari, Nagpur. The said property was purchased by the father of respondent No. 1 by sale deed dated 14-10-1920. While constructing the house, the father of respondent No. 1 left 2 feet of lands on the Eastern as well as Southern side of property. The appellant purchased House No. 586, which is to the East of respondent No. 1's house, by sale-deed dated 1-9-1980. The appellant demolished the old building and started new construction thereon without sanction plan. When respondent no. 1 objected to the construction, the appellant did not show any document to respondent No. 1. By applications dated 2-7-1983 and 21-7-1983, respondent no. 1 moved the Corporation authorities. However, they did not take any action and allowed the construction work of the appellant to continue. Hence, on 1-8-1983 respondent No. 1 preferred an application under section 286 (5)of C. N. C. Act against the appellant and respondent No. 1 before the District judge, as stated earlier.