LAXMAN PRALHAD GANAJI DAYME Vs. VINAYAK MAHADEO PRADHAN

JUDGEMENT

(1.) This petition is filed challenging the judgment and decree dtd. 10/11/1998 passed by the II Extra Joint District Judge, Thane dismissing Civil Appeal No.256/1995 and confirming the eviction decree dtd. 27/3/1995 passed by the II Joint Civil Judge (Junior Division), Thane in Regular Civil Suit No. 250/1991. The Trial Court has decreed the suit by directing the Petitioner-Defendant to handover vacant and peaceful possession of the suit premises to the Plaintiffs within one month.

(2.) Shop No.3 admeasuring 226 sq.ft situated on the ground floor of the building known as Pradhan Building situated at Municipal House No.54, Tikka No.13, No.66 Tembhi Naka, Thane is the suit premises. Plaintiffs claim to be the owners in respect of the suit building in which the suit premises are situated. Defendant was inducted as a monthly tenant in respect of the suit premises for conducting his business of hair cutting saloon in the name and style of 'Fashionable Hairdresser' in the suit premises. Plaintiffs agreed to purchase the suit premises by Agreement dtd. 23/4/1986. Before purchasing the building, Plaintiff No.1, who is a qualified Architect, had conducted site inspection and took measurements. According to the Plaintiffs, Defendant carried out various unauthorised additions and alterations in the suit premises during the year 1990, when the Plaintiffs were travelling. Accordingly, Plaintiffs filed Regular Civil Suit No.250/1991 against the Defendant for recovery of possession of the suit premises on the grounds of erecting permanent structure without landlord's consent, as well as caused injury/damage to the premises and building while carrying out unauthorised additions and alterations. Plaintiffs also claimed encroachment by the Defendant on the common entrance passage, thereby causing nuisance to the Plaintiffs and neighbouring occupiers. Plaintiffs accordingly sought a direction for eviction of the Defendant with further direction to pay an amount of Rs.20,000.00 by way of damages caused and suffered by the Plaintiffs together with interest. The suit was contested by the Defendant by filing Written Statement, inter-alia, denying any work being carried out in the year 1990 as alleged in the plaint. The Defendant thus initially took a defence of denial in respect of any unauthorised additions and alterations. The Defendant filed application for amendment of the Written Statement. Accordingly, Defendant inserted additional averments in para-9 of the Written Statement to the effect that he had applied on 15/12/1985 to Plaintiffs' predecessor-in-title seeking permission to carry out work in the suit premises and by permission in writing dtd. 2/1/1986 he was permitted to execute the said work. That the additional work was performed by the Defendant much prior to the purchase of the suit property by the Plaintiffs and that therefore the case of the Plaintiffs about additional work being carried out during 9/5/1990 to 5/6/1990 taking advantage of Plaintiffs' absence was totally baseless. This is how the Defendant relied on written permission dtd. 2/1/1986 allegedly issued by the Plaintiffs' predecessor-in-title.

(3.) Based on pleadings of the parties, the Trial Court framed issues relating to construction of permanent nature causing destruction to the suit premises, cause of damage of Rs.20,000.00 to the Plaintiffs on account of unauthroised additions and alterations, cause of nuisance to Plaintiffs' and occupiers on account of encroachment by the Defendant and Plaintiffs' entitlement to recover possession of the suit premises. Both the parties led evidence in support of their respective claims. Plaintiffs examined Vinayak Mahadeo Pradhan, Plaintiff No.1 as P.W.1 who was cross-examined by the Defendant. Plaintiff also examined Milind Damodar Chaudhari, neighbouring occupier in support of his contention of additions and alterations being carried out in May 1990. Plaintiffs also examined his brother Madhukar Mahadeo Pradhan as P.W.3 in support of his contention that unauthorised work was carried out by the Defendant in May 1990. Defendant examined himself as D.W.1. Defendant also examined, Anwar Shamshuddin Kasam, one of the coowners of the suit building prior to its purchase by the Plaintiffs' in support of his contention that the work was carried out with the written permission of the said co-owner. After considering the pleadings, documentary and oral evidence, the Trial Court proceeded to decree the suit on 27/3/1995 by answering Issue No.1 in the affirmative holding that Defendant took disadvantage of Plaintiffs' absence in the suit premises and illegally carried out construction of permanent nature and demolitions thereby causing destruction to the suit premises without Plaintiffs' consent. Issue Nos.2 and 3 of Plaintiffs' suffering damages of Rs.20,000.00 on account of unauthorised work and Defendant committing encroachment thereby causing nuisance to Plaintiffs and other occupiers were however answered against the Plaintiffs. The Trial Court accordingly directed eviction of Defendant.