Decided on March 25,1976

Sm. Shyamabala Shaw Respondents


R. Bhattacharya, J. - (1.)THIS second appeal by the plaintiff of the original suit arises in the following circumstances: The plaintiff, Sunil Kumar Banerjee, filed a suit for injunction, both permanent and mandatory. The allegation was that he was the Receiver of the suit property and the defendant is a thika tenant in respect of the suit property at a monthly rental of Rs. 2.06 nP. and on payment of Municipal taxes paid separately to the plaintiff. The defendant, Shyamabala Shaw, without the consent and knowledge of the landlord made certain pucca and permanent construction in the suit land contrary to the provision of the Calcutta Thika Tenancy Act, 1949. This unlawful construction the plaintiff wanted to have removed and he prayed also for permanent injunction restraining the defendant from making any further pucca construction on the suit land.
(2.)THE learned Munsif of the original court decreed the suit on the finding that the defendant raised unauthorised pucca construction as alleged by the plaintiff and besides allowing a permanent injunction restraining the defendant from making any pucca structure on the suit land there was the direction for removal and demolition of all pucca structures on the suit land against that decree. An appeal was taken by the defendant before the District Judge, 24 -Parganas. The learned Subordinate Judge who heard the appeal found that the defendant -appellant did not challenge any of the findings of the learned Munsif on merit. He did not exactly challenge the judgment and the decree. On the day of hearing of the appeal, the defendant filed a petition giving an undertaking that she would remove the permanent structures from the suit land at her own cost and would not claim any compensation for the same in case she be evicted in future from the suit land and on this undertaking the appellant wanted that the decree for mandatory injunction for demolition of the permanent structures be set aside. The prayer was opposed, but the learned Subordinate Judge of the appellate court below, on the basis of the decision in, (1959) 63 Cal WN 824, though he dismissed the appeal on merit with costs to the plaintiff -respondent, modified the decree passed by the trial court. The decree for mandatory injunction was set aside. Against that decision the present appeal has been filed.
(3.)I have heard Mr. Mukherjee, the learned Advocate appearing on behalf of the appellant. Nobody, however, appears on behalf of the respondent.
The only point to be considered in this appeal is whether the learned Subordinate Judge below was justified in setting aside the decree for mandatory injunction for demolition of the pucca structures on the suit land according to law and on the basis of the decision referred to by him. Mr. Mukherjee submits before me that the decision relied upon by the learned appellate Court below was wrongly interpreted and in fact that decision does not support the appellate court below. It has also been contended that the learned Subordinate Judge erred in law causing injustice to the plaintiff by disturbing the decree for mandatory injunction in view of the fact that the court has no jurisdiction to allow a wrong to continue.


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