1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 262 OF 2009 WITH CIVIL APPLICATION NO.309 OF 2009 Smt.Shakuntaladevi Viswanath Agarwal : Appellant versus The Municipal Corporation for Greater Mumbai and Anr. : Respondents. Shri Y K Tiwari i/by M/s.K P Tiwari & Co. for the Appellant. Smt.K K Soraan for the Respondent No.1-Corporation. Shri H S S Murthy for the Respondent No.2. CORAM : R.M.SAVANT, J. DATED : MARCH 05, 2009 P.C. 1. This Appeal takes exception to the order dated 14/11/2008 passed by the learned Judge, City Civil Court, Bombay, by which order the Notice of Motion filed by the Appellant/Plaintiff for temporary injunction came to be rejected. 2. The Appellant/Plaintiff has filed L C Suit No.2443 of 2007 challenging the notice issued by the Respondent No.1-Corporation under Section 351 of the Mumbai Municipal Corporation Act. The suit 2 property in question is the premises admeasuring 42 x 90 sq. ft constructed with B.M. Walls and AC Sheet roof supported by wooden partings and rolling shutters bearing Nos.4 an 5 situated at Bagde Chawl, Survey No.51/Investigating Agency, City Survey No.229, Chatrapati Shivaji Road, Dahisar (East), Mumbai. It is the case of the Plaintiff that she has purchased the suit property from one Satai S Yadav on 03/05/1994 by Agreement for sale. It is further the case of the Plaintiff that before purchasing the suit property, the Plaintiff was a tenant in respect of the suit property. It is the case of the Plaintiff that the suit property is situated in slum. The Plaintiff is in possession of the suit property since 1994 and is using the same for godown purpose. 3. It appears that the officers of the Respondent-Corporation visited the suit property on 7/1/2006 and found unauthorised construction and, therefore, issued a notice under Section 351 of the MMC Act in the name of Sudhakar Hegde who is the original owner, the Plaintiff and one More. The said notice was replied to by the Plaintiff. The said reply of the Plaintiff was considered by the 3 competent authority of the Respondent No.1-Corporation i.e. Assistant Municipal Commissioner and a reasoned order dated 13/6/2007 came to be passed by the Assistant Municipal Commissioner by which order the reply of the Plaintiff was rejected. Consequently, the suit came to be filed and the Notice of Motion for temporary injunction. 4. The Respondent No.2 herein was not originally made a party to the said Suit. The Respondent No.2, who is the owner of the property, filed a chamber summons for being impleaded as a party in the said suit. The said chamber summons came to be allowed and, pursuant thereto, the Respondent No.2 filed his reply. The case of the Respondent No.2 was that the person, through whom the Plaintiff is claiming i.e one Satai S Yadav, had by an agreement of sale, entered into between him and the said Sudhakar Hegde purchased only a open plot of land which can be seen from the Schedule to the said Agreement for sale dated 18/02/1992. It was denied that the Plaintiff was the tenant in respect of the suit premises and it was further contended that the predecessor in title of the Plaintiff had 4 unauthorisedly made the construction. 5. The trial Court by the impugned order rejected the Notice of Motion filed by the Plaintiff for temporary injunction. It would be pertinent to note that the Plaintiff claims through Satai S Yadav, who claims to have purchased the property from one Sudhakar Hegde by registered sale deed dated 18/02/1992. A perusal of the Schedule of the said Agreement discloses that what was sold to the said Satai Yadav was only a open plot of land. Thereafter by Agreement for sale dated 03/03/1994, the Plaintiff claims to have purchased the said property from the said Satai S Yadav. Significantly in the Schedule to the said Agreement apart from the land admeasuring 850 sq. ft. two structures bearing Gala Nos.4 and 5 appear to have been sold. There is another facet to the above matter. It appears that in the year 1997, the said Sudhakar Hegde had filed a suit against the Respondent No.2 herein being Suit No.3087 of 1986 on the ground that the Respondent No.2 was encroaching upon his plot of land i.e admeasuring 850 sq. ft. approximately. In the said suit, an order of status quo was passed by the City Civil Court on 30th September 5 1987. It appears that thereafter on account of the structures being put up on the plot of land belonging to the Respondent No.2 herein, the Respondent No.2 had filed an Application under Section 39(2)(a) of the Code of Civil Procedure for taking against against the said Sudhakar Hegde. In the said proceedings, Sudhakar Hegde took a defence that his licensee i.e the said Satai S Yadav had constructed the said structures and thereby violated the order. The said defence was disbelieved by the City Civil Court as the said Sudhakar Hegde had not taken any action by way of any complaint to any authority in respect of the said structures being put up during operation of the status quo order. Ultimately, the City Civil Court indicted the Plaintiff in the said suit i.e. Sudhakar Hegde, and held that he had committed a breach and violation of the order of status quo by putting up a construction of permanent nature. The City Civil Court by its order dated 2/3/1994, therefore, directed the Plaintiff i.e. Sudhakar Hegde to demolish and remove the permanent structure existing on the disputed portion mentioned in the Commissioner's Report dated 5/6/1986 within four weeks from the date of that order and in case, the Plaintiff complies with the order of demolition and removal of the 6 structure, the order of attachment and imprisonment was not to be implemented. As can be seen the said Sudhakar Hegde was, therefore, held liable for contempt under Order 39 Rule 2-A of the Code of Civil Procedure. 6. It would be significant to note that the said order is dated 2/3/1994 and thereafter immediately, on the next day, an agreement for sale on a Rupees 100 stamp paper was entered into between the Appellant herein and the said Satai S Yadav. In the light of the indictment of said Sudhakar Hegde in the said proceedings under Order 39 Rule 2-A it is not far to seek as to why the said agreement was entered into immediately on the next day. 7. It is sought to be contended on behalf of the Appellant/Plaintiff that the Plaintiff from the year 1994 has been in possession and has been paying assessment in respect of the structure in question. It is further sought to be contended that the Plaintiff cannot be expected to produce the documents for the period anterior to 1994 when the Plaintiff came into possession. For the said 7 purpose, the learned counsel for the Appellant relied upon the judgment of a learned Single Judge of this Court R.M.Lodha, J. (as he then was) dated 19/6/1996 passed in Appeal from Order No.712 of 1996 in the matter of Mohamed Yusuf Abdul Sattar versus Municipal Corporation for Greater Bombay. What has been held in the said Judgment is that a person who claims to be a tenant and who has been given a notice under Section 351 of the MMC Act cannot be expected to produce the documents prior to the date when he has come into possession to prove that the structure is a protected structure and is in existence prior to the datum line i.e. 01/4/1962. In the facts of the said case, the learned Judge had reached a conclusion that the order passed by the competent authority was passed mechanically and without considering the reply to the notice. In the facts of the present case where the Respondent No.2 landlord has been pursuing with the Municipal authorities as regards the unauthorised structure put up by the predecessor of the Plaintiff and in the facts as mentioned herein above the said judgment in my view is of no assistance to the Plaintiff. 8 8. In the conspectus of facts as mentioned herein above and considering the two Agreements which have been referred to earlier in this order, in my view, the order passed by the trial Court rejecting the Notice of Motion does not merit any interference. The above Appeal from order is accordingly dismissed. 9. In view of the dismissal of the above Appeal from Order, the Civil Application No.309 of 2009 does not survive and the same is accordingly disposed of. 10. The effect of this order is stayed for a period of six weeks from date. [R.M.SAVANT, J]