IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.294 of 2009. FIRST APPEAL NO.294 of 2009. FIRST APPEAL NO.294 of 2009. Shri Rama Paddu Poojari ..Appellant versus Municipal Corporation of Gr. Mumbai ..Respondent Shri P.S.Dani i/b. Ms.J.P.Thacker for the appellant Shri Vinod Mahadik for the B.M.C. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th May, 2009. DATED : 6th May, 2009. DATED : 6th May, 2009. P.C. 1. The appellant received notice dated 3.10.1997 under Section 314 of the Corporation Act. The appellant instituted a Long Cause Suit No.5116 of 1997 in the City Civil Court at Bombay so as to have a declaration that the said notice is bad in law and for other consequential reliefs. The appellant had the benefit of full fledged trial and that the learned Judge of the City Civil Court by his Judgment and Decree dated 30.1.2009 decided the said suit and dismissed the same. Being aggrieved by the said judgment and decree dated 30.1.2009 the appellant has filed this appeal. -2- 2. I have heard learned Counsel Mr. Dani for the appellant and Mr. Mahadik for the Corporation. According to the Corporation the suit structure is on the road and that is how the Corporation issued notice under Section 314 of the Corporation Act. In order to substantiate that the suit structure is not on the road and is standing on the private plot of land the appellant produced before the trial Court the document dated 13.12.1973 in the nature of sale deed between the appellant and one Mrs. Marie Pareira. In the said document measurement of the structure is stated as 40ft X 18.50 ft. Certain other description is also mentioned to which I shall advert little hereafter. The appellant also relied upon the various trade licenses issued by the Corporation in support of the contention that the suit structure is authorised and not on the public road as according to the appellant if the suit structure would have been on the road, the Corporation would not have issued the trade licenses. It is also the case of the appellant that the Dy.Collector (Encroachment) had issued repair permission and according to the appellant this also goes to show that the suit structure is not on the road and hence the suit structure was held to be legal. -3- 3. Learned Advocate Mr. Dani appearing on behalf of the appellant took me through that part of the impugned judgment, where the learned Judge has referred to the document at Exhibit 33 and has observed that the City Survey number or other property details are not mentioned. In order to ascertain the correctness of the observation of the learned Judge, record was called and both the learned advocates and this Court had the benefit of seeing the Original Sale Deed which is at Exhibit 33. Learned Advocate Mr. Dani pressed for admission of the appeal as according to him the impugned Judgement is contrary to the record and that the sale deed makes out a case in favour of the appellant to say that the suit structure stands on the private land and not on the road. 4. According to learned Advocate Mr. Mahadik, the appellant in his evidence has admitted that the suit structure is on the road, and learned Advocate Mr.Mahadik heavily relied upon these admissions to say that the appellant himself admits that the suit structure is on the road and therefore whatever documents which have been relied upon by the appellant are of no use. Mr. Mahadik prays for -4- dismissal of the appeal. 5. In reply to the above, learned Advocate Mr. Dani submits that the term "On Road" should not be interpreted to mean that the suit structure is on the road itself, but according to him the said term should be interpreted to mean that the suit structure is by the side of the road. 6. With the aforesaid submission, I have perused the original document Exhibit 33. In so far as argument advanced on the question of admission stated aforesaid on the part of the appellant, I am inclined to give the benefit of doubt to the appellant. It is possible to interpret the term "On Road" in favour of the appellant i.e. to say the suit structure is by the side of the road. Ofcourse, this observation by itself will not help the appellant because the appellant will have to make out a case that the suit structure is not on the road by documentary evidence. 7. Reliance was placed by the appellant on various trade licenses which are issued in favour of the appellant. The license by themselves will -5- not help the appellant because the appellant has not been able to show that the suit structure is on private plot i.e. not on road. 8. The repair permission issued by the Dy.Collector (Encroachment) was relied upon in order to seek protection. That repair permission will not help the appellant. The only document which could have saved the appellant is the sale deed dated 13.12.1973 at Exhibit 33. It will be proper to reproduce the relevant portion of the sale deed for the better understanding of the facts of the matter. The sale deed describes the structure as "House or strucutre of brick walls and C.I.Sheet roof admeasuring 40feet by 18.5 ft or 12.5 mt. hereinafter referred to as the ’said structure’ bearing Municipal N Ward Number 6117, Chawl No.2 and bearing Survey No.98. CTS No.1 to 11/24 of Hariyali Village, South Salsette, Vikhroli (W), Mumbai 83." A perusal of this would go to show that the structure in respect of which the sale deed is executed has dimensions as 40ft X 18.5 ft, hence its area would be 740 sq.ft. At this juncture it will be convenient to refer to the admission on the part of the appellant as to the dimension of the structure which according to him -6- exists as of today. Paragraph 1 of the plaint describes the suit structure as one admeasuring 516 sq.ft. In addition to this structure it is claimed that there is a pan beedi shop of 3 ft X 3 ft. This will mean that the structure of in possession of the appellant is at the most 525 sq.ft. A reading of the description of the structure mentioned in the document at Exhibit 33 and the description of the structure mentioned in para 1, it will be clear that the appellant is trying to use the document at Exhibit 33 to show that it relates to suit structure. In my view, a close scrutiny of the averment in para 1 as well as document at Exhibit 33, it will be clear that the said document does not pertain to the suit structure and the appellant is trying to take benefit of the fact that certain document at one point of time was executed in his favour. It is just not possible that in the year 1973, the appellant could take possession of the structure admeasuring 740 sq.ft, and in the year 1997 the dimension of the structure would be reduced to 525 sq. feet. In any case, if it was the case of the appellant that the structure which is secured under document at Exhibit 33 admeasuring in those days i.e. in the year 1973 is 740 sq.ft or thereabout, -7- then how is it that in the year 1997 when the suit came to be instituted, the dimension of the structure got reduced to 525 sq.ft. The appellant has not explained in the plaint as to how at one time the structure which was admeasuring 740 sq.ft has been reduced to 525 sq.ft. Abssence of explanation in this regard speaks volumes against the appellant and in my view, that confirms my observation that the appellant is trying to use the document at Exhibit 33 for seeking protection in respect of the suit structure. In my view, in the light of the aforesaid discussion, the appellant has not been able to put up his case that the suit structure is standing on a private land. It may be true that the learned trial Judge dismissed the suit on the wrong reading of the document, however, if the learned trial Judge would have considered the aspects which are discussed above, I am sure, he would have reached the same conclusion to which I have reached. In the result it is clear that suit structure stands on the road and it does not stand on a private property, and as such it does not deserve any protection. 9. It is pertinent to note that despite issuance of this notice the appellant has not been -8- able to produce any license under Section 313 of the Corporation Act to say that the suit structure stands on the road and the Corporation had issued licenses to the suit structure and permitted the existence of the suit structure on the road. 10. For the aforesaid reasons, the appeal will have to be dismissed at the stage of admission. Hence the Order. ORDER ORDER ORDER i. Appeal is dismissed at the stage of admission. There shall be no Order as to costs. ii. In view of the above Civil Application No.1116 of 2009 is dismissed with no Order as to costs. iii. After the aforesaid Order is passed, learned Advocate Mr.Dani prayed for limited protection for a period of six weeks or so, to enable the appellant to do the needful in the matter. iv. In the course of arguments, it was -9- mentioned that the suit structure is on the road and the suit structure is obstructing the job of road widening. In my view, the appellant is not entitled to any protection. Request for continuation of protection is rejected. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)