ASHIM CHAKRABORTY Vs. ASHOK CHAKRABORTY

JUDGEMENT

(1.) THE petitioner, named above, set the law in motion presenting the writ petition under Article 226 of the Constitution, seeking this Court to issue a writ of mandamus, directing the respondents to demolish the room constructed over the first floor of the building of respondent No.1 pursuant to the Municipal sanction, dated 19.04.2004(Annexure-7 to the writ petition).

(2.) HEARD learned senior counsel, Mr. S. Deb, assisted by learned counsel, Mr. S. Choudhury for the petitioner and learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Mr. S. Bhattacharjee for respondent No.1. None appeared for respondent No.2 though notice was served, and initially, Mr. A. Ghosh, learned counsel, entered appearance but neither submitted any affidavit-in-opposition nor participated in the hearing.

(3.) RESPONDENT No.1, in his counter affidavit, inter alia, stated that the petitioner, in total disregard and violation of the agreed terms and conditions of the deed of partition, constructed masonry steps by the side of his building, occupying the C-Schedule ejmali pathway to which the respondent raised protest and the petitioner also constructed roof of ground floor and first floor, covering 3/4 ft. of C-Schedule land and also constructed a bathroom-cum-urinal in the C-Schedule land, and further created obstructions by putting net in the ejmali drain, located in the C-Schedule land and the petitioner, even after request and issue of notice, did not remove the obstruction/construction covering the C-Schedule land, and therefore, respondent No.1 instituted Title Suit No.05 of 2006 in the Court of Civil Judge, Jr. Division, and that suit was decreed in favour of the respondent, directing the petitioner to remove the obstruction and to demolish the extended/projected roof of the building. The petitioner preferred 1st appeal No. TA 4/08 in the Court of District Judge, challenging the decree passed in TS 05/06 and the appeal was dismissed. Thereafter, petitioner preferred 2nd appeal before this Court, which is pending for disposal. Therefore, the petitioner was in search of balancing the decree made against him and after a long time filed the writ case, having no cause of action, and therefore, the respondent prayed for dismissal of the writ case.