- (1.) RAKESH Tiwari, J. The defendant appellant has filed this second appeal against the judgment and decree dated 31-3-1980 passed by the II Additional District Judge, Basti, in Civil Appeal No. 166 of 1979, arising out of Original Suit No. 40 of 1973 in the Court of the Civil Judge, Basti.
(2.) THIS appeal has been admitted on the following substantial question of law: "whether on the facts and circumstances of the case, the two Courts below were justified in granting a decree for demolition of the building inspite of a delay of five years in bringing the suit ?" This Court by order dated 23-5-1980 had stayed the decree for possession and demolition. This order was confirmed by order dated 18-5-1981. The brief facts of the case are that a suit was brought by Mirza Iltiza Husain, father of the plaintiff respondents against the defendant appellant for demolition of the constructions made by him and possession of the site thereof on the ground that the defendant appellant had made the constructions in 1968 illegally and without the consent of the plaintiffs and as such the building was liable to be demolished and possession restored to the plaintiffs.
(3.) THE case of the defendant was that the ancestor of the defendant appellant had been granted a licence to make constructions over the land in dispute by the ancestors of the plaintiff-respondents and he had spent a huge amount of money on making the constructions which was in the knowledge of the plainliffs. It was further pleaded that inspite of the knowledge, the plaintiff-respondents did not interfere with the same and as such the suit could not have been decreed without any equitable remedy after such a long lapse of time and that the suit was barred by the principles of estoppel and acquiescence. The courts below decreed the suit deciding an issue as to whether a suit for demolition can be decreed inspite of laches and a mandatory injunction issued for demolition even though the suit was admittedly brought five years after the constructions were made to the knowledge of the plaintiffs.;