CHANDRABHAN SINGH Vs. UDAL SINGH

JUDGEMENT

(1.) THIS revision has been filed by the applicant/plaintiff against the order dated 3.9.1998 passed by the Illrd Additional District Judge, Indore in civil appeal No. 21/1995 whereby the learned Judge has modified the order dated 27.7.1995 of the IXth Civil Judge, Class -II, Indore in civil suit No. 52 -A/1995 and set -aside the same in so far it directed, by a mandatory injunction, removal/demolition of the wall constructed by the respondents/defendants on the disputed portion of the land.

(2.) AS per the case of the applicant/plaintiff, the applicant is the owner of the Plot No. 77 in Parihar Colony, Indore while the defendant has purchased the adjoining plot of land bearing No. 76. The applicant/plaintiff has filed the suit before the Civil Judge, Class -II for declaration, injunction as also for mandatory injunction, on the averments that the defendants have encroached upon a portion of the land of plot No. 77 of the applicant/plaintiff and has constructed a septic tank thereon in addition to a room. An application under Order 39 Rule 1 and 2 was also filed by the applicant/plaintiff to seek mandatory temporary injunction for removal of the construction from the portion of the land belonging to the applicant/plaintiff. Another application was filed on 9.9.1991 before the trial Court to the effect that after the order of status quo passed by the trial Court, the defendant had constructed a wall and therefore, the same should also be directed to be demolished. The learned trial Court by its order dated 27.7.1995 directed the defendant to demolish the wall constructed between the plots from room and the septic tank within 15 days from lthe date of the order and also refrained him from making any new construction on the disputed portion of the land. Against the said order of the trial Court, the defendant filed an appeal which has been partly allowed by the learned Additional District Judge against which this revision has been filed. \

(3.) THE Appellate Court has observed that none of the parties had brought on record any sale -deed or copies thereof in support of their claim of ownership concerning the respective plots. There was also no other evidence to clearly indicate the area of plot in their respective possession nor any other document, evidencing permission for construction. From the report of the Commissioner, though it was clear that some construction had been made, it was not possible to elicit from the same as to whether the said construction was on any portion, of the plot belonging to the applicant/plaintiff or on the plot of defendant himself. In this view of the matter, the Appellate Court has set -aside the order of the trial Court in so far as it directed demolition of the wall.