( 1 ) PRESENT appeal is by the appellant - original defendant Ahmedabad Municipal Corporation challenging the judgment and decree dated 30. 11. 1987 passed by the learned Judge, Court No. 14, City Civil Court at Ahmedabad in Civil Suit No. 3080 of 1982 in passing decree of permanent injunction restraining the appellant - defendant from demolishing the suit structure under Section 231 of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'b. P. M. C. Act') on the ground that the suit structure is an encroachment on public street.

( 2 ) THE respondent herein - original plaintiff filed Civil Suit No. 3080 of 1982 before the City Civil Court, Ahmedabad for permanent injunction restraining the defendant - Corporation from taking any steps of demolishing the property situated on Survey No. 453 of Maninagar Town Planning Scheme No. 24 without giving him notice under Section 260 of the B. P. M. C. Act and without giving him opportunity of hearing. According to plaintiff property in question was in existence since many years prior to the area in which the property is situated was brought within the Municipal limits. That minor repair were carried out from time to time as the structure was old. On 15. 03. 1982 the defendant gave plaintiff a show cause notice why the property should not be demolished. The plaintiff gave reply to the said notice and that thereafter notice was withdrawn on technical grounds. As per the plaintiff, since the property is of private ownership, the defendant Corporation was not authorized to act without giving the plaintiff an opportunity of hearing and according to the plaintiff, the defendant, however threatened to demolish the property without giving any notice and without following any procedure and therefore, the plaintiff filed aforesaid suit for the aforesaid reliefs. Thus suit was based on apprehended action of the appellant - Corporation. The defendant - Corporation filed written statement at Exh. 7. According to the defendant suit site is a part of street land, which is known as Vatva road having a width of 80 feet. The area is covered by Town Planning Scheme No. 24 and a part of the width of the road is asphalted and the other half is not asphalted. Suit structure were situated on unasphalted portion of the said road and they were removed by the defendant on 16. 07. 1982. The removal operation continued from 11. 00 a. m. to 6. 00 p. m. On 16. 11. 1982. After the receipt of ad-interim injunction order of the Court, the removal work was stopped and few structures remained untouched on the site. It was specifically mentioned in para 4 of the written statement that suit site has already gone in the street land. With regard to withdrawal of the notice, the defendant stated that on examination of the relevant records and site inspection, it came to the defendant's notice that the structure was erected on street land and mistake took place because of the unasphalated width of the street land. Therefore, it was requested to dismiss the suit. The learned trial Court raised the following issues :

1]. Whether the plaintiff proves in R. S. No. 453 Final Plot No. part of T. P. Scheme No. 24 the plaintiff is tenant occupier of superstructures carrying business from last many years ? 2]. Whether the plaintiff proves that he was carrying out repairs and plastering off and on? 3]. Whether the plaintiff proves that it is in private land? 4]. Whether the defendant proves that it is encroachment of part of public street? 5]. Whether the plaintiff proves that the suit notice to demolish it is illegal, against rules of natural justice? 6]. Whether the plaintiff is entitled to any mandatory injunction as prayed? 7]. Whether the plaintiff is entitled to permanent injunction as prayed? 8]. What order and decree?

( 3 ) THE plaintiff examined himself at Exh. 27 and Officer of the defendant - Corporation was examined at Exh. 42. Documentary evidences also came to be produced at Exh. 28,30,33,45 and

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