TUKARAM SAWANT Vs. MANGALALAXMI CHINUBHAI SHAH

JUDGEMENT

(1.) THIS appeal takes exception to a decree for eviction, permanent injunction and damages in relation to a site admeasuring 14 x 20 on the Southern side of the building known as Shobha Sadan, Plot No. 321-A. Dadar Matunga Estate, Scheme No. V. Matunga, Bombay-19 (hereinafter referred to as the suit premises ).

(2.) SHOBHA Sadan comprising a multi-storeyed structure together with land appurtenant thereto formerly belonged to Shyamaldas Gordhandas Gandhi and others. The building stands on land owned by the Bombay Municipal Corporation (BMC ). One of the Gandhis was a lady known as Kashibai. Respondents/plaintiffs acquired the property under a deed of assignment dated 6 June, 1973.

(3.) PLAINTIFFS case was that the lease under which their predecessors-in-title and they held the land on which stood the structure Shobha Sadan belonged to the BMC and one of the conditions which bound the lessees was not to use or permit the open land to be built upon except with the previous consent of the BMC Defendant was permitted by the Gandhis to use a small portion touching the southern side gate measuring 3 x 10. This was not given to his exclusive possession All that he was entitled to do on the said space was, to put up a crusher for extracting sugarcane juice and selling the same. The open space was kept for exit and entry of the tenants and occupants of the building. Defendant was to use the open space without any structure permanent or otherwise thereon. The licence in favour of the defendant came to an end with the assignment in favour of the plaintiffs. Defendant was not paying any compensation either to the Gandhis or to the plaintiffs He had no right, title or interest in the space or any part thereof entitling him to continue his occupation Defendant with the object of putting forth a claim on the property, on or about 13 December 1974, unauthorisedly constructed a shed with roof of corrugated asbestos cement sheets covering an area of 14 x 20. The shed had not been put up after obtaining the BMCs permission. In fact the BMC had called upon the plaintiffs to evict the defendant, his being there on the site itself being a violation of the clause earlier mentioned. As a result of the doings of the defendant, plaintiffs had to give an undertaking that they would get his fixtures removed from the land. As an earnest of this commitment, they were required to make a deposit of Rs. 200/- with the BMC. Repeatedly called upon to vacated defendant has ignored the demand and hence this suit. They claim possession of the space measuring 14 x 20 after removal therefrom of the defendant as also the fixtures and annexures brought in by him. Plaintiffs further pray for past damages totalling to Rs. 2750/- calculated at the rate of Rs. 150/- per month. Pendente-lite and future damages are requested to be ascertained under a decretal direction.