1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION FIRST APPEAL NO.1425 OF 2009 WITH CIVIL APPLICATION NO.3855 OF 2009 Rampratap R. Mishra ...Appellant. v. The Municipal Corporation of Gr. Mumbai ...Respondents. Mr.R.D.Misra, adv. For the Appellant. Mr.Vinod Mahadik, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : 27th November , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 Perused the copies of the documents, which were produced by the plaintiff/appellant before the trial Court. 3 To state in brief, the respondent/Municipal Corporation issued a notice under Section 351 to the Plaintiff/appellant for demolition of the structure below the common staircase, admeasuring 3 ft. 5 inches X 12 ft 8 inches, on the first floor of the building no. 299 Kalbadevi Road, Mumbai. The plaintiff/appellant filed L.C.Suit No.5634 of 2000 for declaration that the said notice was bad in law and not 2 binding and also he sought perpetual injunction restraining the Corporation from demolishing said structure in pursuance of the said notice. According to the plaintiff/appellant, the said premises was let out to his grandfather Shri Surajpal Oza in the year 1958 and since then monthly rent was being paid to the landlady. It was contended that as the property is in existence since prior to 1962, the property is protected even though necessary permission was not obtained for construction of the same. Plaintiff did not examine himself. On his behalf his constituted attorney and son filed evidence on affidavit. He also produced several documents including copy of the voters’ list for the period from 1960 to 1964, copy of the driving licence issued in 1960, ration card, etc. All these documents go to show that plaintiff and his father as well as grandfather were residing on the first floor of the Johar Palace, 299, Kalbadevi Road, Mumbai. It is not the case of the plaintiff that disputed structure is the only property in that building in which his family was residing. The disputed structure is admeasuring just 3 ft. 5 inches X 12 ft. 8 inches, ie., the small stripe which is below the stair-case and is converted into room. It is impossible to believe that family has been residing in that small room below the stair-case in all these years. 3 Plaintiff did not examine either landlady or any neighbour to show that he was residing in the structure and that it is in existence since prior to 1962. It is not that relations between the plaintiff and his landlady were strained and, therefore, landlady did not appear as witness. Plaintiff produced a document purporting to be certificate from the landlady dated 10.7.2007 to the effect that family of the plaintiff, since time of his grandfather Surajpal Oza, is residing in the room no. 5/4 below the staircase. That certificate was not proved by examining landlady. If the landlady issued such a certificate, it indicates that the relations between the parties were not strained. She could have been examined before the Court. In absence of such oral evidence, certificate had no value. The sanctioned plan of the building was also not produced. Notice wasnot issued to the landlady to produce that document nor plaintiff issued notice to the Municipal Corporation to produce its record about the sanctioned plan to show that structure below the stair-case was really sanctioned. Taking into consideration material on record, I do not find any fault with the findings of the trial Court that the plaintiff had failed to prove that structure was in existence since prior to 1962. 4 4 Therefore, I do not find any substance in the present appeal. In the result, appeal stands dismissed. As the appeal itself is dismissed, civil application does not survive and stands disposed off. (J.H. BHATIA,J.)