1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.360/2010 NAGPUR IMPROVEMENT TRUST ..VS.. M/S SELECTION HOUSE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 4 /10 / 2010 Heard Shri Chhabra, the learned counsel for the appellant and Shri O.D. Jain, the learned counsel for the respondent. The appellant is the original defendant. A suit was filed by the plaintiff for a declaration that the notice issued by the defendant to the plaintiff under section 286(2) of the Corporation Act for demolition of the unauthorized construction was illegal as the plaintiff had not made unauthorized construction in the suit premises. According to the plaintiff he was the tenant in the shop since a number of years and the plaintiff had merely carried out some repairs of the suit premises in the year 1978 with the permission of the landlord. The defendant denied the case of the plaintiff and pleaded that the plaintiff had carried construction of 16.20 meters x 4.20 meters on the main road which was unauthorized. The defendant pleaded that the construction carried out by the plaintiff was illegal as it was not sanctioned by the N.I.T. Both the courts on appreciation of the evidence on record held that the plaintiff had succeeded in proving that the notice issued by the N.I.T. was illegal. The courts held that the plaintiff had pleaded in his evidence that he had not made any unauthorized construction admeasuring 16.20 meters x 4.20 meters on the suit property. Plaintiff also stated in his evidence that the tin-shed erected by the plaintiff had been removed by the plaintiff and there was no unauthorized construction on the suit 2 property. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the evidence on record. The courts considered that the plaintiff was cross-examined by the defendant, and the plaintiff had denied the suggestion that he had carried any unauthorized construction on the suit property in the year 1991. The defendants had failed to examine in any witness on their behalf and hence the courts held that the defendant had not succeeded in proving that the plaintiff had made unauthorized construction without the sanction of the authorities. In view of the evidence of the plaintiff in his examination in chief and in view of the denial of the suggestion of the defendant by the plaintiff in his cross-examination, it was necessary for the defendant to examine a witness in this case to prove that the plaintiff had made an unauthorized construction on the suit premises. Since the findings recorded by both the courts do not give rise to any substantial question of law, the second appeal fails and is dismissed with no order as to costs. JUDGE SMP.