M/S Shaha Ratansi Khimji & Sons vs Proposed Kumbhar Sons Hotel P.Ltd.& Ors

7. The case of the appellant is that the respondent had purchased 11/16th share of Vinayak Patwardhan in Plot No. 525 by two sale deeds dated 9th September, 1971 and 21st January, 1978, After purchasing the plot, the respondent demolished the RCC building existing over the property and started digging for basement for construction of a hotel. Later, on 4th May, 1990, the respondent purchased the remaining 5/16th share from Ujjwal Lahoti.

9. The appellant filed a Regular Civil Suit No. 211 of 1990 in the Court of IInd Jt.Civil Judge, J.D. Karad, at Karad. In the said civil suit, the appellant prayed that the respondent be restrained from closing the access of the appellant to the suit property from the municipal road. The appellant further prayed that the respondent be restrained from digging in a manner which would cause damage to the godown.

10. In the said suit, initially ad interim injunction was granted restraining the respondent from further digging the suit property. Finally, on 28th May, 1990, ex-parte interim injunction was vacated. Aggrieved by the same, the appellant filed a Misc. Civil Appeal No. 123 of 1990 before the IIIrd Additional District Judge, Satara against the order passed in RCS No. 211 of 1990.

11. The said appeal was also dismissed on 16th April, 1996. It was alleged that the respondent thereafter went ahead with further destruction of the godown and demolished the western wall of the godown on 21st October, 1996. Aggrieved by the same, the appellant moved an application for amendment of the plaint bringing on record that on 21st October, 1996, the respondent again pulled down some portion of the western wall of the godown and due to the damage caused to base of the property, during the rainy season the remaining walls also had collapsed. The appellant sought amendment of the plaint and inclusion of prayer to the effect that the respondent be directed to reconstruct the walls by order of mandatory injunction. The appellant further prayed that it may be allowed to reconstruct the walls of the godown and the respondent should not be allowed to destroy or disturb the appellant from construction of the godown.

13. The respondent filed written statement and additional written statement in which one of the grounds was taken was that godown got demolished due to natural cause and not due to the acts of the respondent.

34. In view of the fact and circumstances of the case, we have no other option but to set aside the impugned judgment and decree dated 18th July, 2006 passed by the High Court of Judicature at Bombay in Second Appeal No. 109 of 2006 and Judgment and decree dated 30th November, 2005 passed by the Addl. District Judge, Karad in RCA No. 86 of 2002. However, taking into consideration the fact that the appellant is not in possession of the suit property since long, we are not inclined to direct restoration of possession of suit property to the appellant. Instead we direct the respondent to pay a sum of Rs. 20,00,000/- (Rupees Twenty Lakhs only) in favour of the appellant towards compensation for depriving the appellant from enjoying the suit property, within two months, failing which it shall be liable to pay interest @ 6% per annum from the date of the judgment.

35. The appeal is allowed with the aforesaid observation and direction. No costs.

…………………………………………………………………CJI.