- (1.) HEARD Shri G. Shirodkar, learned Government Advocate on behalf of the appellants and Shri C. A. Coutinho, learned Counsel on behalf of the respondents.
(2.) THIS First Appeal is directed against Judgment/Order dated 7-12-2004 of the learned Adhoc Additional District Judge in Special Civil Suit No.113/1999/III, by which the learned District Judge by way of a mandatory injunction has directed the demolition of the toilets constructed by the defendants(appellants herein) in the suit properties except those constructed in the plots sold by the plaintiff, and to restore the suit properties to their original position. There is no dispute that the respondent/plaintiff is a co-owner of two properties, surveyed under Nos.336/1, 336/3 and 309/12 of Manora village. The said two properties are occupied by several persons with their respective houses who till the date of the evidence was given by the plaintiff had not even registered as mundkars. The Government had a scheme of constructing Sulabh toilets, and pursuant to an application made by some of the occupants of the houses in the said property, the Government constructed 12 toilets in the first property, and 9 toilets in the second property admeasuring about 1.5 x 1.5 meters each. The Government also constructed some toilets in the plots sold by the plaintiff. According to the plaintiff, she was not concerned with the construction of the toilets sold to the said plot owners.
(3.) ADMITTEDLY, the said construction of the toilets was done without the permission of the plaintiff or other co-owners of the property, and, therefore the plaintiff filed the suit, inter alia, for mandatory injunction directing the defendants(appellants herein) to demolish all the toilets constructed in the said two properties except those constructed in the properties sold as aforesaid and to restore the property to its original condition. At the hearing of this appeal, Shri G. Shirodkar, learned Government Advocate, on behalf of the appellants/defendants has submitted that the defendants had taken a plea of non-joinder of the persons who were occupying the said property and for whose benefit the Sulabh toilets were constructed, and, therefore in the absence of the said persons as party defendants, the suit could not have been decreed.;