1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 98 OF 2008 Shri Magansingh Motilal Vyas & Anr. ..Applicants. Vs. Smt.Asha Laxman Kelkar ..Respondent. Mr. K. N. Kandekar i/b. M/s. Mayur Narendra & Co. for the Applicants. Mr. G. S. Godbole for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 17TH JUNE, 2008 P.C. : The lower Appellate Court reversed the decree passed by the trial Court dismissing the Respondent's suit for eviction and decreed it. The Court found that the Applicants had caused nuisance or annoyance to the Respondent; that they had made permanent construction on the suit property and that they had also encroached upon the property of the Respondent. 2. It is difficult to interfere with the findings of fact which have been arrived at by the lower Appellate Court after considering the entire evidence on record satisfactorily. 2 3. For instance, on the construction of the written statement it is observed that the Applicants had contended that it is not merely the built-up portion but even the open spaces surrounding the same that had been let out to them. There is nothing on record which establishes the Applicants' case that they were entitled as tenants to the open space abutting the constructed portion admeasuring about 88 square ft.. Despite the same, even in a previous suit bearing number 92 of 1992 the Applicants had contended that they were entitled to the open space on the property. 4. As the lower Appellate Court was criticized for having wrongly interpreted the pleadings which were in Marathi, I gave the Advocates an opportunity of placing translations thereof before me. It is now agreed that on a correct translation, it was pleaded in paragraph 5 of the written statement that out of the property bearing C. T. S. No.30 and 29C, the eastern roadside ground floor property and the open space below the staircase was given to the Applicants/Defendants on monthly rent of Rs.200/-. The above property comprises not merely of the shed but also open spaces. Thus, no fault can be found with the lower Appellate Court in observing that the Applicants had from time to time claimed 3 different portions including the open space. 5. Moreover, in the said Suit No.92 of 1992 and in the present suit the portions claimed by the Applicants were not consistent. I am unable to fault the lower Appellate Court in finding that the portions claimed by the Applicants in the two proceedings are different. In fact, before me it was not even contended that anything other than the constructed portion had been let out to the petitioners. 6. Pursuant to an order of this court dated 11.7.2006 the TILR was appointed to survey the property. The TILR thereafter surveyed the property and made a report. The report also indicates that a portion of the property under the staircase claimed by the Applicants was not in their possession. Thus, the Applicants had failed to even establish the portions claimed by them to have been tenanted to them. 7. The report of the TILR was not challenged in the lower Courts. A grievance was made before me that the report was made in the absence of the Applicants. The grievance having been made before this Court for the first time, I am not inclined to entertain it in the facts of this case. It appears to be an afterthought. Moreover this is not the only ground on which the 4 decree is liable to be sustained. 8. Nor is it possible in these circumstances to fault the finding of the lower Appellate Court that having wrongly claimed the open spaces as having been let out to them the Applicants utilized the same by throwing their waste articles and storing their material thereon. Such encroachment certainly causes a nuisance and annoyance to the landlady. That the landlady is now a senior citizen only adds to the problems faced by such nuisance. 9. The Respondent had raised various questions of fact giving particulars of the nuisance caused by the Applicants on the suit property as well as of the illegal construction thereon. In respect thereof she had even filed complaints with the police and with the municipal authorities. It is not necessary, in view of the above, to deal with all the contentions. 10. In the circumstances, the Civil Revision Application is dismissed. The time to vacate the suit premises is extended up to and inclusive of 31st December 2008 subject to the petitioners filing an affidavit containing the usual undertaking including an undertaking to hand over vacant, quiet and peaceful possession of the suit premises on or before 31st December2008 subject to any orders of the Apex Court.