PRABHAKAR BHAGWANTRAO MAHAJAN PRESIDENT SARAFA VYAPARI ASSOCIATION AMRAVATI Vs. SATYANARAYAN SHRIWALLABH LADDHA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 25. 4. 1990 passed by the learned 5th Additional District Judge, Amravati, in Regular civil Appeal No. 503 of 1986, whereby the appeal came to be dismissed and the judgment and decree passed by the Trial Court on 6. 10. 1986 dismissing the suit with costs and allowing the counter-claim of defendant No. 2 directing the plaintiff to deliver the vacant possession of the suit site to defendant No. 2 was confirmed.

(2.) BRIEF facts are as under : the appellant original plaintiff filed suit for permanent injunction on the contention that the plaintiff/association is the tenant of Municipal house No. 158 (2) situated in Ward No. 44 at Amravati and the said tenement is owned by respondent/defendant No. 1. The respondent/defendant No. 2 contended that he had purchased the whole building including plaintiffs tenement from defendant No. 1, but it was without the knowledge of the plaintiff. The defendant No. 2 started demolishing one of the shops adjacent to the plaintiff tenement and erected the cement concrete pillars adjacent to the eastern wall of the plaintiffs tenement piercing the same in the plaintiffs western wall. The defendant No. 2 was served with the notice dated 1. 4. 1981 calling upon him to stop the work, but it was in vain. The defendant No. 3/municipal Council served the notice dated 18. 11. 1982 on the contentions that the plaintiff has constructed the eastern wall of his tenement by making encroachment on 9 feet land situated towards the east of the tenement and directed to demolish the said wall. The plaintiff contended that this notice is illegal and void. The defendant No. 2 threatened the plaintiff that he would demolish the eastern wall without recourse to law. The plaintiff further contended that there was no wall at point AB as shown in the map filed by the defendant and also denied that he demolished the said wall and constructed a new wall by encroaching upon the site owned and possessed by defendant No. 2. It was further contended that the defendants have no locus standi to demolish the said eastern wall and, therefore, the plaintiff was constrained to file suit for permanent injunction.

(3.) THE defendant No. 1 did not contest the suit, though served. The defendant No. 2 admitted that he is the owner of the house and that the plaintiff is the tenant of Municipal House No. 158 (2 ). He also admitted that he demolished one shop in March, 1981 as the said portion had become dilapidated due to fall of "pipal tree" on it. It was also admitted by defendant no. 2 that he erected R. C. C. pillars just adjacent to the eastern wall of plaintiffs tenement to give support to the girders of the roof of the first and second floor of the building. He contended that he had dug some plinth for the concrete pillars which were beyond the eastern wall of the plaintiffs tenement without in any way taking out the support of the eastern wall. The defendant No. 2 contended that the plaintiff had demolished the bamboo plantered eastern wall and constructed a new wall in brick and cement by encroaching on or about 1 feet land towards the eastern side even engulfing the cement concrete pillars of defendant No. 1. He further contended that the newly constructed eastern wall is liable to be demolished and, therefore, he has made a counter-claim for vacant possession of the portion of the land under encroachment with damages amounting to Rs. 500/ -.