YASHWANT S/O DASHRATH BHAGAT Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) Rule is made returnable forthwith. Heard finally by consent of the parties. Shri M.I. Dhatrak, learned Counsel waives notice on behalf of the respondent.

(2.) The petitioner is the original plaintiff and the respondent is the defendant in Regular Civil Suit No.14 of 2006 filed for declaration and perpetual injunction. The declaration was claimed in respect of the notice dated 23.01.2006 issued by the respondent/defendant for demolition of construction and the perpetual injunction claimed restraining the respondent/defendant from demolishing the structure of the petitioner/plaintiff in any manner. The petitioner made out the case in the suit that the disputed property was purchased by him from one Nepalsingh Thakur. On the contrary, the case of the respondent/defendant was that the suit property is the public property and the petitioner has encroached upon it.

(3.) The petitioner thereafter filed an application for amendment of plaint. By this application, the petitioner wanted to add para 1-A and para 5-A in the plaint. The petitioner also wanted to add para [i(a)] and para [i(b)] in prayer clause. By this amendment, the petitioner wanted to plead that he has made construction on the suit property in accordance with law. The petitioner also pleaded that without following proper procedure, the Municipal Council cannot declare the suit property as the public property. The additional relief of declaration was also claimed. The trial Court rejected the application on two grounds. Firstly, the trial Court observed that the petitioner's sale deed reveals that he has purchased only the upper structure and the construction is made without obtaining permission from Gram Panchayat. Secondly, the proposed amendment is sought by way of reply to the contention of the respondent and same cannot be allowed.