BASHIR AHMAD Vs. JAVED MOHD & ORS.

JUDGEMENT

(1.) This revision has been directed against the order of learned Additional District Judge dated 25.5.1999.

(2.) Briefly stated, Bashir Ahmed filed a suit against Javed Mohd., Hasan Khan and Urban Improvement Trust, Jodhpur for permanent injunction, declaration of licence as void ab-initio and for dispossession with the averments that the Urban Improvement Trust approved a plan to raise a shopping centre in Bada Bazar, Jodhpur. Plaintiff was in possession of shops No. 131 and 132 where he has established his office and business. Each of the shops was 15' x 10' having a verandah of 8' x 10'. An open space was left on the western side of shop No. 131 and thereafter series of shops were constructed, there were licences of shops No. 131 and 132 and the licence of shop No. 132 was issued in the name of G.L. Khanna which also has a site plan. This site plan is in possession of the plaintiff. In continuation of shop No. 132 on the eastern side, shops of Hasan Khan are situated over which is residential house of Hasan Khan was constructed. It is further averred that Hasan Khan obstructed the verandah of plaintiff's shop No. 132. Plaintiff sent some letters to the Urban Improvement Trust complaining that Hasan Khan had obstructed the open land near shop No. 132 but the Urban Improvement Trust did not pay any heed. Thereafter the plaintiff filed a suit that the land which was trespassed upon by Hasan Khan be got vacated from him. In the written statement of that suit Hasan Khan pleaded that the said open land was a part of plot No. 136 whose licensee was Javed Mohd. Plaintiff had constructed his residential house in plot No. 131 and shop of plot No. 132 and a residential house on the shops some time in the year 1977 where he was residing. He had raised a balcony. It was further averred that the plaintiff was entitled to keep the land as open place on the southern side of his plot No. 132 as the same was lying open since 1977. It was further averred that at verandah of plot No. 136 is constructed beyond plot No. 132, it will cover more than half of share of the plaintiff which will cause inconvenience to him. Defendant No. 2 had not followed condition No. 2 of his licence, therefore, the plaintiff was entitled to maintain his easementary rights. It was prayed in the suit that the defendants may be restrained not to raise construction beyond verandah of plot No. 132 and to restrain them from causing damage to the balcony of the plaintiff and other portion of his house. A decree for removal of 'paths' etc. from the open land has also been sought. Application for temporary injunction was moved in which all the averments, as stated above, were made.

(3.) The case of the Urban Improvement Trust is that the plaintiff petitioner had based his petition on false pretext as the scheme where property is situated is a commercial complex which was approved by the State Government many years ago and the plaintiff was not entitled to change the plan at all. The disputed land was a part of plot No. 136 which was allotted. Verandah of 8 feet in plot No. 136 was originally planned in the original plan and it was situated beyond plot Nos. 132 and 131. It was further averred that the plot No. 132 did not belong to the petitioner plaintiff and hence there was no prima facie case of the plaintiff and he was not the owner of the plot. Defendants 2 and 3 were raising construction of his shop No. 136 on the said plot where they had every right to construct. It was the plaintiff who himself raised illegal constructions of plots 131 and 132 and had raised his balcony towards plot No. 136 in the size of 2 feet 6 inches. This was an illegal construction which he cannot retain. He was not authorised to change the original plan. The point of balance of convenience and irreparable loss or of prima facie case were not in favour of the plaintiff.