KALU RAM Vs. NATHU RAM

JUDGEMENT

(1.) In the suit filed by the Plaintiff-appellant the trial Court framed the following issues :-

(2.) Findings on all the issues were returned in favour of the plaintiff-appellant and the suit was decreed and in appeal, preferred by the defendant-respondents, findings on all the issues were affirmed by the First Appellate Court, yet while giving the relief instead of ordering demolition of unauthorised construction, it ordered payment of some amount as value of the encroached land. It is this part of the order, which is not to the liking of the appellant. From the admitted facts, it would reveal that defendant-respondents in the Court below undertook that in case the plaintiff succeeds in the suit instituted by him, they will themselves demolish the constructions and it is only on their undertaking the stay order was modified accordingly. That being the position, there was no scope for the First Appellate Court to order payment and not to pin down the defendant-respondents on the undertaking given by them.

(3.) For the reasons aforesaid, this appeal is allowed and the judgment of the first Appellate Court is modified to say that the relief portion would read that the plaintiff would get a decree for mandatory injunction and the unauthorised construction raised on the land encroached by the defendants shall be demolished and vacant possession of the same shall be handed over to the plaintiff-appellant and the judgment and decree passed by the trial Court would be affirmed.