NARENDRA CHIRKUTRAO BALPANDE Vs. ATULKUMAR PUNDALIKRAO ATKAR

JUDGEMENT

(1.) The original defendants have by this Second Appeal challenged the reversing judgment dated 22.12.1989 delivered by the IInd Additional District Judge, Nagpur in Regular Civil Appeal No.503/1984. By that judgment while setting aside the dismissal of Regular Civil Suit No. 31/1978, filed by the present respondents in the Court of 3rd Joint Civil Judge, Junior Division, Nagpur; the Lower Appellate Court permanently restrained the appellants from erecting any structure over the portion lying to western side of the plaintiffs' plot no.20A in Khasara no.54 of Sakkardara Road, Mouza Sakkardara, Tahsil and District Nagpur. The suit was filed by the respondent contending that to the West of his plot no.20A there is 80 feet vide public road and present appellants have started construction over the said road illegally. The suit was dismissed by the trial court after observing that the plaintiff could not establish that said construction undertaken by the defendants in any way constitute invasion of his legal right. It found that as per report of Commissioner, there was no road existing on West side of plot no.20A. The Lower Appellate Court while reversing this judgment found that the original defendants accepted that there was 60 feet vide road adjacent to the West of the plot purchased by her husband and the said road later on became 80 feet vide and it ran over her plot no.20. It further found that the said plot no.20 of defendant was acquired by the Nagpur Improvement Trust for construction of 80 feet vide road. It further found that in some other litigation the Hon'ble High Court permitted Nagpur Improvement Trust to start demolition work of structures on acquired land and therefore, the plaintiff was entitled to get road frontage for his plot on Western side.

(2.) This Appeal has been admitted on 30.03.1992 on the following substantial question of law :

(3.) In this background I have heard Senior Advocate Shri R.B. Pendharkar, with Advocate Shri Hedau for appellants/defendants and Advocate Shri B.N. Mohta, for respondent/plaintiff. The appellant no. 2[i], 2[j] and 2[k] who were minors have attained majority during pendency of this Second Appeal. Learned Senior Advocate had sought leave to carry out necessary amendment in this respect. Advocate Shri B.N. Mohta, has no objection. Leave to amend is accordingly granted. Necessary amendment be carried out immediately.