AO. 349-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 349 OF 2011 WITH CIVIL APPLICATION No. 490 OF 2011 Jitendra Devendra Shah … Appellant Vs. The Municipal Corporation of Greater Mumbai … Respondent *** Mr. K. D. Jha, for the Appellant. Mrs. K. K. Soran, for the Respondent. *** CORAM : J. H. BHATIA, J. DATE : AUGUST 1, 2011 PC. 1. Rule. Rule made returnable forthwith. By consent of parties, appeal is taken up for final hearing and decision. 2. Heard the learned counsel for the parties and perused the record. 3. This appeal is preferred by the original plaintiffs, against the dismissal of the Notice of Motion, taken out for AO. 349-11 - 2 - temporary injunction restraining the respondent Municipal Corporation from enforcing the notice & the order issued under Section 351 of the Mumbai Municipal Corporation Act. Said notice pertains to the first and second floor of the rear side Building No. 324/195-205 Nagdevi Street, Mumbai. According to the respondent Corporation, said structure is unauthorized while according to the Plaintiffs, said structure consisting of several shops is in existence since before 1961 and is protected under the law. The learned trial court referred to the City Survey Sheet of 1950, 3rd Edition and found that as per the said record the building had ground + four floors on the front side but the rear side structure was having only a ground floor. As the said City Survey Sheet did not indicate the existence of the ground and second floor on the rear side structure, the trial court held that prima-facie there is no material to show that the said structure is in existence since prior to 1962. 4. The learned counsel for the plaintiffs/ appellants pointed out that not only in 1991 whole building including the structure was assessed and the assessment was shown to have been made prior to 1961-62, but the Cadestral Survey Sheet No. 28, 4th Edition of 1960 goes to show that rear side building had AO. 349-11 - 3 - also ground + two floors. It appears that this document has been lost sight of by the trial court. If the Cadestral Survey Sheet No. 28 of 1960 Edition shows the existence of ground + two floors on the rear side, prima-facie the disputed structure appears to be in existence prior to 1962 being the detum line. If it is so, then under the law it is protected. This needs to be considered at the time of trial of the suit. 5. In view of the above, the appeal is allowed. The impugned order is hereby set aside and Notice of Motion is allowed. The respondent is directed not to act upon the impugned notice & order under Section 351 of the MMC Act till decision of L.C. Suit No. 4958 of 2006. As the said suit is at the stage of recording the evidence, the trial court shall expedite hearing and dispose of the suit within six months. The respondent may file the written-statement, if not already filed, within six weeks. . Rule is made absolute accordingly. 6. In view of disposal of the Appeal from Order, the Civil Application taken out therein does not survive for consideration and is accordingly disposed of. [ J. H. BHATIA, J.]