:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.57 OF 2008 Manoj S. Tiwari and ors. ..Appellants. Vs. Siddharth S. Tiwari and ors. ..Respondents. Mr.Santosh Narawade i/by by M/s. M.P. Vashi and Associates for the Appellants. Mr. J.J.Xavier for the B.M.C. Mr.R.A.Thorat for the Respondents 1 to 6. CORAM : R.S. MOHITE,J. DATE : 22nd April,2008. P.C. P.C. P.C. 1. Heard both sides. 2. The relevant documents are annexed to the compilation. The present appeal is filed by the original plaintiff Manoj Tiwari against the dismissal of his suit. The said suit sought a permanent injunction against the defendants 1 to 6, their family members, servants, agents and employees from putting up hoardings and for proceeding with the construction work of constructing hoardings partly on CTS No.34 and 34/1-13 situated off Ram Mandir Road, S.V.Road, Goregaon(W), Mumbai-62. The only other relief which was sought in the suit was for directions to demolish :2: the unauthorised construction work which had been put up after 26.4.2007. 3. The record indicates that the said erection of the hoardings was being done in pursuance of the permission granted by the B.M.C. The said permission was granted to one Mr.R.M.More who was partner of M/s Longman Printers and Publications. The said permission holder was not made as party defendant to the suit. It was the case of the plaintiff that the defendants were only entitled to only 3ft. from their wall. It was further their case that the erection was being erected on the land beyond this area and therefore, there was encroachment on the plaintiff’s property and this was affecting his easementary right of ingress and egress. From the record, it appears that a Court Commissioner was appointed and from the report of the Court Commissioner, it appears that four pillars of the hoardings were within the area of 3ft. The first pillar was at 2.6 feet the second was also at 2.6 feet, the third was 2.9 feet and the fourth was 2.8 feet from the defendants wall. 3. As observed by the trial court after the erection of the hoardings there was a 5ft. margin available for ingress and egress of the plaintiff and on such finding the suit of the plaintiff was dismissed. The counsel :3: appearing for the respondents-original defendants 1 to 6 fairly states that the right of ingress and egress of the appellant into the 5ft of the common passage will not be disturbed. The counsel further states that this statement is made on the footing that the respondents will also be permitted to use this common passage. Statement is accepted. On the acceptance of the statement, it is directed that both the parties will be entitled to use the common passage of 5ft. between the properties of the plaintiff and the original defendants. 4. It may be stated here that the finding of the Court Commissioner was not challenged before the Trial Court. By way of one more chance by an order dated 5.2.2008 this court had appointed City Survey Officer as Court Commissioner to measure the land, fix the boundaries and also draw a sketch of the property. The Appellant was to pay the costs of the Commissioner but on the next date he expressed inability to pay the costs and therefore, said order was recalled. This being the situation and as the ingress and egress of the plaintiff has been sufficiently protected, in my view, this is not a fit case where first appeal should be admitted. Hence, first appeal is dismissed. It is made clear that the erection of the hoardings should be strictly in accordance with the permission granted by :4: the B.M.C. It is also made clear that if erection is made in violation of the sanctioned permission, the B.M.C. will be entitled to take action, in accordance with law. (R. S. MOHITE, J.)