1 fa1734 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1734 OF 2011 Mohammed Rafiq Fouzdar Khan ...Appellant vs. The Municipal Corporation of Greater Mumbai ...Respondent Mr.Dhananjay Shukla for the appellant Mr.Vinod Mahadik for the respondent CORAM : A.S.OKA,J. DATE : OCTOBER 19, 2011 P.C.: 1 Heard learned counsel for the appellant. He states that the appellant is not willing to remove the first floor of the offending structure. 2 The challenge by the appellant-plaintiff in the suit was to the notice under section 351 of the Mumbai Municipal Corporation Act,1888 and the order of demolition passed thereon. The Trial Court has dismissed the suit. 3 A compilation containing true copies of the pleadings, notes of evidence and documents produced before the Trial Court are placed on record. The only contention raised by the appellant is that there were number of documents on record to show that he was in possession of the suit structure prior to 1st January 1995 and that is the finding of the learned Trial Judge. He submitted that at 2 fa1734 highest, if the appellant does not prove that he was in possession as on 1st January 1995, he may not get the permanent alternate accommodation but the structure cannot be demolished. He invited the attention of the Court to various documents including the repair permission granted by the Respondent-Corporation. He submitted that as the written statement was not filed, a decree ought to have been passed under Rule 5 of Order VIII of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code). 4 I have carefully considered the submissions. Going by the averments made in the plaint, entry of the appellant in the suit premises is on the basis of the agreement dated 27th September 1994 by which he purportedly purchased the suit premises from one Thakur Parvatsingh Ranbir Singh. Other documents which are placed on record in the name of the appellant have come into existence after 1st January 1995. I have perused the affidavit in lieu of examination in chief of the appellant. To prove the said agreement, the appellant has not examined the vendor under the said agreement. It will be also necessary to make a reference to the cross examination of the appellant. The relevant part of the cross examination reads thus : 1 I have purchased the suit property in the year 1994. When I purchased the structure, it was of bricks and cement sheets roof. The structure was made of brick walls and there was a slab of tiles and above that there was a roof. 3 fa1734 The height of the structure is 10 ft up to the slab and above 14 ft. I again say that the height of the structure is 17 ft at the front and at the back 22 ft approximately. I volunteer that I have not measured it. I was residing and also doing business in the said premises from the date of purchase. There are many other structures near about my structure, I cannot state the number. I cannot state the width of the road in front of the structure. In the road widening, 10 ft of my structure was demolished approximately. It is not true that after the demolition in the road widening, I increased the height of my structure. I do not know whether my structure is censused. I have not produced photo-pass. It is not true that I have constructed beyond the permission for repairs granted to me by th BMC. It is not true that there was no 1st floor to my structure at all and that I have made it new one. (underline added) 5 In the alleged agreement for sale, the area of the suit premises has been mentioned as 50 x 22  and it is stated that the structure is having a first floor. 6 In order to avail the benefit of policy, it was necessary for the appellant to prove that as on 1st January 1995 he was in possession of the suit premises. The appellant did not examine his vendor to prove the contents of the Agreement. 4 fa1734 7 The learned counsel for the appellant cannot rely upon rule 5 of Order VIII of the said Code in as much as Trial Court had called upon the appellant to lead evidence and to prove his case and accordingly, the appellant adduced the evidence. 8 The learned Trial Judge has considered the documents on record. The first document is photo copy of enquiry regarding photo pass which is of 16th December 1995. The Ration Card is of the year 2000. Repair permission is of the year 1999. The licence under the Shop and Establishment Act is of the year 2010-2011. Thus, the appellant could not prove that he was in possession of the suit premises as on 1st January 1995. 9 Hence, there is no error in the view taken by the learned Trial Judge. Appeal is accordingly dismissed with no order as to costs. 10 Civil application no.3798 of 2011 does not survive and the same is disposed of. 11 Ad-interim relief granted by this Court on 6th September 2011 will continue to operate for a period of eight weeks from today. JUDGE