1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR S.A.NO.252 of 2005 Madhukar Waghuji Kotkondawar ..vs.. Jairam Pochu Yelmule and anr. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.Anoop Dhore Adv. for the appellant. Mr.D.L.Dharmadhikari Adv. for resp. C ORAM : C.L.Pangarkar, J. DATED : 15th April, 2010. Heard the learned counsel for the appellant and the respondents. This is an appeal by the original plaintiff against the judgment and decree passed by the first appellate dismissing the suit of the plaintiff., The plaintiff claims to be a tenant in respect of land said to be owned by the defendants/ respondents. It was the case of the plaintiff that he made a construction on 20 x 15 feet on the said land which was let out to him and he was running a cold- drink and tea stall there. Later the Government authorities demolished certain portion of the 2 construction said to be made by the plaintiff. During the course of that removal of the encroachment, it is alleged that, the shutter fixed to the said structure was also removed by the government authorities and the plaintiff sought to re-fix the said shutter. The defendants/respondents, who are the landlords, obstructed. The plaintiff, therefore, filed a suit for declaration and injunction. The suit was resisted by the defendants alleging that they had let out 4 x 4 ft. of land to the plaintiff and plaintiff had made encroachment on rest of the land. They do not dispute that the portion of the construction has been demolished by the Public Works Department (PWD) authorities since it was treated an encroachment by the PWD authorities. The defendants contend that since the plaintiff had made an encroachment they had not allowed the plaintiff to fix the shutter at all. The learned Judge of the trial court, after recording the evidence found that the construction was made by the plaintiff and he was running a cold-drink stall there and he had a right to refix the shutter. Holding so, he decreed the suit. The appellate court, however, found that the plaintiff has no right to fix the shutter since the encroached portion has already been demolished by the Government and plaintiff cannot be allowed to fix 3 the shutter on the encroached portion of the land. The appellate court, therefore, allowed the appeal and dismissed the suit. From the judgment, it can be seen that the plaintiff himself had placed on record the document showing that the land admeasuring 20 x 12 ft. was in fact, let out to him. It is not in dispute that the Government authorities have removed the encroachment to the extent of 10 ft. It is, therefore, obvious that whatever construction was there on the spot has been demolished and what is left is a portion of 2 ft. breadth. There is no document to show that the plaintiff was given any permission to make a construction by the defendants. The defendants had raised the plea that they had made the construction. It would not make any difference as to who has made the construction. The fact remains that there is no document to show that the plaintiff was ever permitted to make any construction. Had such permission been granted by the defendants, then perhaps the plaintiff could have been allowed to the restoration of the shutter in order to make use of the portion which was left after removal of the encroachment. But since no such permission has been granted by the defendants, the plaintiff has no right to make any construction including the fixing of the shutter which is removed 4 by some other authorities on account of encroachment. The appellate court has rightly appreciated this fact. It is a finding of fact. No question of law is urged. I see, therefore, no substance in the appeal. Same is dismissed in limine. JUDGE. chute