Mahitosh Majumdar, J. - (1.) This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, 9th Court, Alipore, District 24 -Parganas in Title Appeal No. 1332 of 1970 dated 14th March, 1973 affirming the judgment and decree passed by the learned Munsif, 2nd Court Sealdah, in Title Suit No. 272 of 1970 dated 22nd August, 1970. The plaintiff filed the suit for declaration and injunction. We plaintiff's case is that the plaintiff is the owner of the structure at Premises No. 165/H/37, Beliaghata Main Road. The plaintiff purchased the suit premises by registered Kobala dated October 18, 1943 and he has been possessing the structure as aforesaid. The Commissioner of the Corporation of Calcutta, the defendant herein, served a notice dated May 3, 1963 upon the plaintiff to the effect that "if the plaintiff provides 4 ft. wide space on the north and pays necessary Corporation charges within one month from the date of communication of the order the case may be dropped otherwise the structure will be demolished". It is claimed by the plaintiff that the demolition order passed as afore said is illegal, without jurisdiction and as such not binding upon him. He has further contended that the structures are very old and have been in existence for more than 12 years. He made necessary repairs of the structures and the walks of the structures remain in the same position as before and the structures thus made relate back to the period more than 12 years and he has been residing there with his family. The proforma defendants are his name -lenders and have no right, title and interest in the suit property. He further claimed that he would suffer irreparable loss if the defendant is not restrained by an order of perpetual injunction from demolition of the structure.
(2.) The Commissioner for the Corporation of Calcutta filed a written statement and claimed that the structures are not old and have been recently created without any sanctioned plan in violation of the Building Rules and that is the reasons of passing he order of demolition after giving the plaintiff an opportunity of being heard. It is further claimed by the Commissioner that unauthorised construction, as carried out by the plaintiff, was detected on April 7,1955 and it has been emphatically denied that the structures have been in existence for more than 12 years as stated by the plaintiff.
(3.) Upon the pleadings of the parties the following issues were framed : 2) Is the suit barred under Sec. 589 and 87 of the C. M. Act ? 4) Is the order of the Commissioner, Corporation of Calcutta, illegal, ultra vires and without jurisdiction? 5) Is the plff. entitled to a decree for permanent injunction as prayed? 6) To what relief, if any, is the plff. entitled? Issue No. 2 was not pressed and was answered in favour of the plaintiff. Issues Nos. 4, 5 and 6 and were taken up together.;