MOHAMED IBRAHIM KHAN Vs. GAJANAN RAMA PARAB GAONKAR

JUDGEMENT

(1.) This is plaintiff's second appeal arising from R. C. S. No. 103/90. The dispute between the parties is regarding the removal of a stall/gada existing in survey no. 213/11 of Piligao village in Bicholim Taluka in which the defendant carries on business in the name and style of "brahmo centre store". This second appeal was admitted on 2362000 on the following substantial questions of law: (1) Whether the appellate Court, on the finding given by the trial court that the plot on which the suit structure stands forms a part of Survey no. 213/11 could have reversed the finding of the trial Court and dismissed the suit (2) Whether the suit could have been dismissed by the appellate court on the ground that the plaintiff had no locus standi to maintain the suit

(2.) To answer the said substantial questions of law a few facts are required to be set out. The plaintiff claiming to be an Association of the muslim Community of Piligao and further claiming that the plaintiff is the owner in enjoyment and possession of the property known as"baisika bhatalem" or "pir Baisika Bhatalem" surveyed under Sub Divisions 11 and 12 of survey no. 213 filed the suit, inter alia, for mandatory injunction for removing the stall/gada and for demolition of illegal construction. According to the plaintiff the suit property consists of a mosque, graveyard, shop premises and trees and that at the time of survey the name of their president Shri Ahmad Khan Hussain Khan was shown in the occupants' column of records of rights. The plaintiff claimed that about 40 years back a compound wall was constructed by the plaintiff towards the northern boundary of the said property by keeping a set back of about 2 metres between the edge of the public road and the compound wall so as to allow free movement of the people outside the compound wall and also to enable the plaintiff to wash the compound wall rly. It was the case of the plaintiff that in the year 1972, at the request of the defendant, the plaintiff permitted the defendant to keep a movable wooden gada on the said vacant strip covering an area of 1.50 metres by 1.10 metres at the north west corner of the mosque by mere tolerance and as the plaintiff promised to vacate the same as and when asked to do so by the plaintiff. It was the case of the plaintiff that in June, 1986 the defendant was requested through the President of the plaintiff to vacate the said gada but the defendant instead of removing the said gada erected a roof of palm leaves standing on wooden poles and extended its length by 1.50 metres and covered all the three sides with palm leaves unauthorisedly that the eaves water started falling over and inside the compound wall into the suit property and also started a club of carom games in the extended portion as a result of which there was noise throughout the day and late hours of the night which disturbed the peaceful atmosphere of the mosque and, therefore, the plaintiff sent their advocate's notice to quit, vacate and deliver peaceful possession of the land of the suit property upon which the said gada stood, and, the defendant in reply to the said notice alleged that the plaintiff had no right and interest in the said strip and, therefore, was not in peaceful possession of the land upon which the gada stood. The plaintiff stated that thereafter the defendant approached the plaintiff through its President and requested them to permit him to continue with the said gada for six months more and, therefore, the plaintiff did not initiate eviction proceedings against the defendant but inspite of the said promise the defendant avoided to take away the said gada on one pretext or the other. The plaintiff stated that on 2361990 the defendant removed the wooden poles as well as the roofing of palm leaves and installed steel pipes with zinc sheets by encroaching further by 2 x 6 metres in such a manner that the edge of the said roofing of about 0. 5 metres was directly leaning inside the compound wall of the property of the plaintiff and the plaintiff immediately lodged a written complaint to the Village Panchayat and the Village Panchayat took no action. The plaintiff, therefore, filed the suit for permanent and mandatory injunction directing the defendant to remove the said stall/gada and demolish the illegally constructed structure, restoring its possession to the plaintiff.

(3.) The case of the defendant was that the said compound wall was constructed by the villagers of Muslim Community about 50 years back without keeping set back of 2 metres and that there was no strip of land between the edge of the road and the said compound wall either belonging to the plaintiff or to the Muslim Community. The defendant stated that the said compound wall was not constructed by the plaintiff and the land outside the compound wall did not belong to the plaintiff. According to the defendant the said gada/shop was constructed by him about 25 years back and was registered with the Village Panchayat in the year 1971 and since then he was paying tax of Rs. 5/. The defendant stated that he registered the said shop in the year 1975 under the Shops and Establishment Act and obtained a licence from the Director of Civil Supply to sell grocery items as well as kerosene and took electricity connections in the year 19711972 and it occupied an area of 5 x 2 metres. The defendant stated that the shop was not situated on the land of the plaintiff and, therefore, the plaintiff had no right to ask the defendant to quit and vacate the said shop. The defendant stated that he carried out repairs to his shop on two occasions during the last 25 years and that the said zinc sheets for the roof and the iron pipes in place of wooden poles were put long time ago.