( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION CIVIL APPELATE JURISDICTION USJ FIRST APPEAL NO.650 OF 2009 FIRST APPEAL NO.650 OF 2009 FIRST APPEAL NO.650 OF 2009 Ashok Khandekar ..Appellant V/s. Nilkanth Gopal Bidikar and Ors. ..Respondents ...... Mr. Chirag Balsara i/by Mr.V.P. Vaze for the appellant None for the respondents ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 8th May, 2009 DATED : 8th May, 2009 DATED : 8th May, 2009 P.C.: P.C.: P.C.: 1. The respondent No.3, respondent No.1, respondent No.2 and two others purchased a plot of land bearing City Survey No.288 in Parel Sewri Division, Parel, Mumbai-00 013 way back in the year 1986. Thereafter all these persons had joint ownership in respect of the structure standing thereon as a permanent structure. The respondent No.3 constructed the suit structure of about 160 Sq.ft. adjacent to flat then owned and occupied by respondent No.3. The respondent Nos. 1 and 2 in the year 2002 filed the suit against respondent No.3 in the City Civil Court at Bombay being S.C. Suit No.838 of 2002 for declaration that the said structure admeasuring 160 sq.ft. (hereinafter referred to as the "suit structure") is illegal. Subsequently, an amendment was made to seek an order as regards demolition of the suit structure. During the pendency of the suit, the ( 2 ) present appellant purchased the ground floor tenement, which was in the possession of respondent No.3 and the suit structure. Naturally, the present appellant was made as a party defendant in the suit. 2. The learned Judge of the City Civil Court in the said suit being S.C.Suit No.838 of 2002 gave an opportunity to the parties to attend the trial and by judgment and decree dated 12th March, 2009 decreed the suit and passed a declaration that suit structure is illegal and also ordered the present appellant and respondent No.3 who were the defendants in the said suit to demolish the suit structure. It is seen that as respondent No.3 had sold the suit structure in favour of the appellant, he has lost interest in the suit structure and that is how the appeal is filed against the impugned judgment and decree by the appellant i.e. defendant No.2. 3. I have heard learned advocate Mr.Balsara appearing on behalf of the appellant. I have perused the impugned judgment. Learned trial Judge has approached the entire matter as regards declaration and as regards nature of the structure and demolition of the same by keeping in view primary facts namely the entire land and building thereon was owned by the five persons whereas the suit structure was constructed by respondent No.3. Learned trial Judge has also noted that respondent No.3 and the appellant ( 3 ) could not bring on record material to show that the suit structure was constructed after obtaining consent of the other four co-owners and the entire exercise of construction of the suit structure was done in total disregard to rights of other co-owerns. 4. Before this Court, learned advocate Mr.Balsara submitted that the prayer (a) in the suit which relates to declaration that the suit structure is illegal, is barred by the period of limitation as the suit was filed in 2002. He submitted that it is case of the respondent Nos.1 and 2 that that suit structure was constructed in the year 1995-96 illegally and therefore it was well within the knowledge of respondent Nos.1 and 2 that the structure came into existence in the year 1995-96 and therefore, the suit ought to have been filed within three years from the date when the suit structure came to be constructed. 5. It was also argued that the learned trial Judge got confused in regard to the nature of the relief which was sought in as much as at some point of time he treated the suit as suit for possession and while passing the final decree he has ordered demolition of suit strucutre. It was sought to be contended that the Municipal Corporation has not raised objection as regards the suit structure and that whether a particular structure is authorized or illegal can be determined by the Municipal authority ( 4 ) and the respondent Nos.1 and 2 had no authority or jurisdiction to brand the suit structure as illegal and seek declaration. 6. After having considered the relevant points, it is required to be noted that the prayer for demolition of the suit structure was made while the suit was pending. Once that request was granted prayer for demolition of the structure came into operation from the date when the suit came to be filed. If this is the position, the Court has to consider the two prayers taken together. Once, respondent Nos.1 and 2 sought demolition of the suit structure, they could not have done so without obtaining the declaration that suit structure is illegal. In my view, the prayer to seek declaration that the suit structure is illegal is an introductory prayer and the principal prayer would be a prayer of demolition. In such a case, the learned trial Judge has rightly arrived at conclusion and has decreed the suit as regards demolition of the suit structure. As the structure was constructed in the year 1996, prayer for demolition of structure would be tenable and within the period of limitation as the suit was filed in the year 2002. 7. Relief of removal of the suit structure was considered after the plaint was amended. The pryer in that behalf is crystal clear and therefore learned ( 5 ) trial Judge has ultimately and rightly observed that the suit is for demolition of the suit structure. There was no question of the respondent Nos.1 and 2 seeking possession of the suit structure because looking to the plaint, they were not happy with the happenings in regard to the construction of the suit structure without their consent and the they wanted that the suit structure should be removed from the site. Record is very much clear to show that respondent Nos.1 and 2 wanted to see that the structure which was constructed without the approval of respondent Nos.1 and 2 should be removed. 8. After having considered the entire judgment, no interference is required in the impugned judgment. because the appellant or respondent No.3 have not been able to place before the Court any material to show that the suit structure was constructed after obtaining permission from the co-owners. The appellant has not placed material to show that the suit structure was constructed after approval from the BMC or any other authority who could have validly permitted respondent No.3 to construct the suit structure. 9. The conduct on the part of respondent No.3 in constructing the suit structure without the consent of other co-owners goes to show that suit structures was constructed violating the rights of respondent Nos.1 ( 6 ) and 2 and two other owners. The respondent No.1 and 2 and two had equal right to enjoy the land on which suit structure was constructed and construction of suit structure had the effect of depriving their right and hence it will have to treated as illegal. 10. The argument advanced by learned advocate Mr.Balsara that the Municipal Corporation did not object the suit structure and therefore the learned Judge ought to have declined to grant decree for demolition of the suit structure cannot be accepted because learned trial Judge was required to determine the rights of respondent Nos.1 and 2 and others. In my view, he has rightly arrived at final conclusion that the suit structure is illegal in as much as it was constructed without the consent of all other co-owners and hence it is illegal and hence he came to the conclusion that the same deserves to be demolished. 11. For the reasons mentioned aforesaid, I am inclined to observe that on merits no fault can be found in the impugned judgment and that present appellant has no case on merits. It is also required to be noted that the appellant who was a purchaser of the suit structure from respondent No.3 has not at any point of time shown that he satisfied himself that the suit structure was validly constructed i.e. after ( 7 ) obtaining permission from the respondent Nos.1 and 2 and two others. I am inclined to observe that the judgment and decree passed by the learned trial Judge, it is not required to interfered on merits and therefore the first appeal is required to be dismissed. 12. For the reasons mentioned aforesaid, I pass following order. ORDER ORDER ORDER . First appeal is dismissed at the stage of admission. In the facts and circumstances of the case, there shall be no order as to costs. . Civil Application No.1971 of 2009 is dismissed with no order as to costs. 13. After the aforesaid order is passed, learned advocate Mr. Balsara appearing for the appellant sought protection to enable the appellant to go through this order and do the needful in the interest of justice. Such a request can be granted and hence the judgment and decree challenged in this Court shall not be implemented till 15th July, 2009. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)