PATASHI AND ORS. Vs. RAMGOPAL

JUDGEMENT

(1.) 1. Heard Learned Counsel for the parties. Perused the impugned judgments, and the records of the two learned courts below.

(2.) The learned courts below have decreed the plaintiffs suit for mandatory injunction, directing the defendant, to remove the construction raised on the portion of "CIJK" marked by red ink in the site plan Ex. 1 within two months, failing which the plaintiff will be entitled to have it removed through the Court.

(3.) Assailing the impugned judgments & decrees it has been contended, that the plaintiff has relied upon a decree passed on compromise, in the year 1986, (Sic. 87) but then the plaintiff did not disclose the fact of his having filed the earlier suit in the year 1982, and such non disclosure clearly amounts to fraud on the part of the plaintiff, and thus since the decree has been obtained by fraud, in, view of the judgment of Honourable the Supreme Court in S.P. Chengalvaraya Naidu (dead) by LRs. Vs. Jugannath (dead) by LRs. & Ors., 1994 (2) CCC 131 (S.C.) : JT 1993(6) SC 331 . the same is liable to be set aside. Then, it is contended that the map Ex. 1 is not an authentic map, but it only a Nazari Naksha which could not be decisive about the extent of construction to be removed, and the evidence led on behalf of the plaintiff, de-hors the map, does not establish any endorsement, but this aspect has not been considered by the learned courts below, which vitiates the impugned judgments. The other submissions made is. that the land is a Government land, and since it does not belong to the plaintiff, no decree of mandatory injunction, for removal of construction, could be granted, in favour of the plaintiff, directing removal of construction from such Government land. Then, it was also contended, that no declaration has been sought by the plaintiff. about his title on the land in question, and in absence of such relief, decree for mandatory injunction could not be granted. Then it is contended that the suit filed in the year 1984. by the plaintiff, was filed against the municipality only, in which the appellant was not a party, and therefore, the findings recorded therein could not be used against the appellant Thus, it was prayed that the decree may be set aside.