NILESH NARAYANRAO MIKHAR Vs. RAMDAS BAPURAO GHUDE

JUDGEMENT

(1.) An order passed by the Additional District Judge, Wardha, in Misc. Civil Appeal No. 68/1986 on 22-1-1987 confirming the order passed by the Civil Judge, Senior Division, Wardha, in Reg. Civil Suit No. 448/1986 on 4-12-1986 rejecting his application for temporary injunction is the subject matter of agitation before me in this revision.

(2.) The controversy covers a very narrow compass. A diversion of plot No. 3, Nazul Sheet No. 57 (presently numbered as City Survey No. 1902) admeasuring 435 Sq. Meter previously belonged to one Shesharao Chintamanrao Ronghe. At the south-eastern corner of this plot is a structure attached with lavatory and bath. The present petitioner (plaintiff in the original suit) has been occupying the structure as a tenant. This plot along with the structure came to be transferred to the present respondent by a registered sale-deed dated 11th August, 1986. After the purchase of this property the present respondent served the petitioner with a notice informing him that he had purchased the suit property and he wants the snit property for his own occupation and that he shall have to vacate the block as it is required for renovation or occupation or for his own residence. The notice served on 4-9-1986 remained unreplied. The respondent, therefore, instituted a proceeding under Cl.13(3) of the C.P. and Berar Letting of Houses and Rent Control Order before the Competent Authority for permission to evict the petitioner. Those proceedings are still pending.

(3.) It is the case of the petitioner that an or about 12-10-1986 the respondent trespassed into an open plot to the north of his residential block, did excavation and started some construction. Complaints were made to the police and also to the municipal authorities but as they could not be redressed he has instituted this suit for injunction. His main allegations in the suit are that the structure along with the open plot have been the subject matter of the tenancy and, therefore, his possession cannot be disturbed except in accordance with law. As such the defendant (respondent) has absolutely no right to trespass upon the land and carry out the construction. Secondly, it is contended by him that as long as his tenancy is not terminated according to law, he has an absolute right of enjoyment of the property including the open site. Thirdly, that by the trespass and the contemplated construction, his way (ingress and egress) has been blocked. He has applied for temporary injunction and sought the same on the ground that he has prima facie case and unless helping hand of this Court is stretched, irreparable loss or injury is likely to be caused.