Final Order 1

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IN THE COURT OF :COURT 11 ADDL SESSIONS JUDGE
Case No. :CHAMBER SUMMONS/0101060/2018
Shri Sakharam Dagdu Sanas - Suit Stamp No.6632 of 2018 Vs MCGM
Date : 29-05-2018
Business : By Preciepe Adv. Mr. V.T.Dubey for plaintiff present. Adv.
Mr. Khandagale for BMC/Deft.present. Draft Ch/s
alongwith affidavit in support taken out by the Plaintiff for
seeking amendment in the suit plaint. T.O.R. Leave granted
to register. Adv.for Plaintiff tendered Vakalatnama. T.O.R.
List of the documents tendered by the Plaintiff. Heard.
Perused affidavit in support of Ch/s. It appears that during
the pendencey of the suit, the Defendant has passed order
and accordingly being subsequent event, the Plaintiff has
filed this application. If present Ch/s is allowed, no
prejudice would be caused to the Defendant and proposed
amendment will not change nature of the suit. In the facts
and circumstances, in order to avoid multiplicity of the
proceedings Ch/s is to be allowed in the interest of justice,
with this I proceed to pass the following order ORDER 1.
Draft Ch/s is made absolute in terms of prayer clause (a). 2.
The Plaintiff is directed to carry out the amendment as per
schedule annexed to Ch/s on or before next date and further
directed to place on record amended copy of the suit plaint
and also directed to serve amended copy to the Defendant.
3. Accordingly draft Ch/s is disposed of and it be registered
for statistical purpose. Draft N/m along with affidavit in
support taken out by the Plaintiff for restraining the
Defendant temporarily from demolishing suit premises in
pursuance notice dt 23.04.2018 and order dt 24.04.2018.
T.O.R. Leave granted to register. Heard. Perused
documents. Photographs filed on record are not recent
photographs but the photographs are of the old structure.
The document at page no. 12 discloses that unauthorized
structure on the government land on 16.12.1985 having area
under occupation was 15 into 9 and accordingly damage
charges imposed upon the Plaintiff&amp#039s wife.
Receipts regarding payments filed by the Plaintiff. Thus,
prima facie it appears that suit premises is on the
government land. It is prima facie discloses that in the year
1985 direction were givento the wife of the plaintiff that not
to make repairs and / or additions or alteration of the
encroachment without prior permission of the appropriate
authority. Prima faice the Plaintiff has placed his reliance on
the datum line in respect of government land as of the year
1995. In the facts and circumstances, suit property disclosed
in the suit plaint as 25 x 20 sq.ft area ground mezzanine
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floor. Thus, it is not the same area which was existing in the
year 1985 as mentioned in page no. 12 to the pliant. Prima
facie the Plaintiff has not produced how and when the
Plaintiff has made addition and alteration of the existing
encroachment on government land. The Plaintiff has not
filed on record permission of the appropriate authority.
Thus, prima facie there is not evidence to accept that the
suit structure is tolerated structure even by considering the
datum line of the year 1995. Therefore it is not fit case to
grant Ad interim relief. Hence Ad-interim relief is rejected.
Suit is already adjd.to 17.07.2018 for N/m reply.
Authenticated copy of Roznama be supplied to both the
parties.
Nature of Disposal : DISMISSED
Disposal Date : 29-05-2018
COURT 11 ADDL SESSIONS JUDGE
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