-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 CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.498 OF 2007 APPEAL NO.498 OF 2007 APPEAL NO.498 OF 2007 Laxminarayan Fulchand Bhattad ...Appellant vs. Nandlal Chunilal Mantri (since deceased through L.R.)& Ors. ...Respondents Mr.Umesh Mankapure i/b Mr.Rupesh Bobde for the Appellant Mr.Satyajeet Ligade for Respondent Nos.1 to 3. CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 28, 2008 : FEBRUARY 28, 2008 : FEBRUARY 28, 2008 P.C.: P.C.: P.C.: 1. The Second Appeal is by the original defendant. The Respondents are admittedly the tenants of the Appellant in respect of a residential premises. The Respondents filed a suit alleging that there was a bathroom forming part of the rented premises which was illegally demolished by the Appellant. In the suit filed by the Respondents the trial court directed the Appellant to re-erect the bathroom. The said decree passed by the trial court has been confirmed by the District Court in the Appeal. 2. The submission of the learned Advocate for the Appellant is that there was no evidence on record to show that the bath room was in existence. His submission is that even if it is assumed that the bathroom was in existence, there was no evidence adduced by the Respondents to show that the bathroom was a part and parcel of the premises let out to the Respondents. His submissions is that in absence of any evidence to show that the alleged bathroom was a part of the rented premises, the trial court could not have passed the -2- decree. He submitted that the courts below have committed an error by relying upon the photographs as well as the reports of the court Commissioner. He submitted that the negatives of the photographs are not produced and therefore, the photographs were inadmissible in evidence. He, therefore, submitted that the impugned Judgements and decrees are perverse. 3. I have carefully considered the submissions. It is not in dispute that the Respondents are the tenants in respect of the residential premises and the Appellant is their landlord. The allegation of the Respondents is that there was a bathroom in existence on the portion marked "D E F G’ on the plan annexed to the plaint and in June 1980, the said bathroom was demolished by the Appellant. 4. The trial court and the Appellate Court have relied upon the two different reports of the Courts Commissioner. The first report at Exh.16 shows that there was a bathroom and a water tank in existence. The second Commissioner’s report at Exh.43 records that there were circumstances in existence to show that the bathroom earlier existed. The Commissioner recorded that there were signs and marks to show that the bathroom was in existence. Even if the photographs are ignored, the reports of the Court Commissioner form part of the evidence in view of Rule 10 of Order XXVI of the Code of Civil Procedure,1908. The existence of the bathroom was thus proved. Not only the existence of the bathroom was proved, -3- but the fact that the same was demolished was also established. It is their specific case that the bath room was a part and parcel of the rented premises. The written statement filed by the Appellant was of denial. The courts below found that the bathroom was in existence which has been demolished. On this background, it is significant to note that the Appellant did not step into witness box. That is the reason why the courts below and especially the Appellate Court have accepted the case made out by the Respondents that the bathroom was a part and parcel of the rented premises. When the respondents specifically came out with case that the bath room was a part and parcel of the residential premises and their case of existence of the bathroom and subsequent demolition was accepted by the courts below, failure of the Appellant to enter the witness box becomes very significant. 5. In view of the failure of the Appellant to enter the witness box and considering the reports of the Court Commissioners, the courts below have found that the bath room has been demolished by the Appellant. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. 6. In view of dismissal of the Appeal, Civil Application No.838 of 2006 does not survive and the same is disposed of. JUDGE JUDGE JUDGE