KESHAB CHANDRA GHOSH Vs. SANDHYA RANI JANA

JUDGEMENT

(1.) This second appeal is directed against judgment and decree dated 20 th November, 2000 passed by learned Civil Judge (Senior Division), First Court at Midnapur in Title Appeal No.64 of 2000 reversing the judgment and decree dated 25th of January, 2000 passed by learned Civil Judge(Junior Division), First Court at Midnapur in Title Suit No.136 of 1996.

(2.) The appellant/plaintiff filed said suit alleging that while he was exercising his right, title, interest and possession in 'A' and 'B' Schedule properties, he sold away 'B' schedule property to the defendant by a registered kobala dated 21st of April, 1995. It is further case that the defendant started construction by installing concrete pillars adjoining to the common boundary wall in violation of Municipal law and rules and without keeping required three feet space. Though at the initial stage at the intervention of local people, the defendant demolished the pillars upto the ground level and assured that he will not make any construction in violation of Municipal rules but again started construction by raising concrete pillars leaving less than one foot space from the common boundary walls of the plaintiffs and hence was the suit for a permanent injunction restraining the defendant from making any illegal construction as well as for a mandatory injunction for demolition of said unauthorizedly constructed pillars.

(3.) The respondent defendant contested said suit by filing written statement. She denied material allegations of the plaint and contended inter alia that at the time of purchase of said 'B' schedule property from plaintiff there was one tin shed house adjoining the common wall along with latrine well etc. and that subsequently defendant obtained sanctioned plan from the municipality on 17th May, 1996 for making pucca construction in 'B' schedule property and as per said plan she was making construction thereupon. It was further case that at the time of said purchase there was an agreement between the parties that defendant would be permitted to make pucca construction on her purchased land using said common wall as wall of her house and / or leaving space measuring one feet six inches (1'6") from the western side common wall. It is further case that keeping said assured distance from the western side common wall when the construction was almost complete as per sanctioned plan plaintiff demanded Rs.20,000/- from the defendant for making said construction and while defendant refused to pay said amount, this false case was filed.