ARUN KUMAR Vs. LAL CHAND

JUDGEMENT

(1.) THIS appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondents for mandatory injunction directing the appellants to remove the alleged encroachment made by them over a portion of the public street, to remove the alleged illegal and wrongful projection built by the appellants and to remove the structures raised on the allegedly exclusive wall of the respondents.

(2.) LEARNED counsel for the appellants has raised four arguments. His first argument is that the construction was made after getting the site plan sanctioned from the Municipal Committee and that, therefore, it does not lie in the mouth of the respondents to allege encroachments on municipal land. His second argument is that admittedly his building is behind the municipal drain. This fact also mitilates against the finding of encroachment. His third argument is that the suit of the respondent is barred by res judicata since the predecessor-in-interest of the respondents had filed a similar suit which was dismissed in default and thus the present suit was not maintainable. His fourth argument is that the suit was time barred because admittedly the shop in dispute was constructed in the year 1987 while the present suit was filed in the year 1992. As far as the first two arguments are concerned, in my opinion the same are questions of fact. There is also an application for additional evidence to place on record certain photographs. I find that the same does not satisfy the stringent requirements of Order 41 Rule 27 of the CPC.

(3.) IN Amir Din Shahab Din's case (supra) a second suit was filed during the pendency of the first and a Division Bench held as follows :-