1 FA1498.06 hvn IN THE HIGH COURT OF JUDICAUTRE AT BOMBAY CIVIL APPELALTE JURISDICTION FIRST APPEAL NO. 1498 OF 2006 Mohammad Iqbal Haji Alabux and Ors. ... Appellants Versus M/s. Lokhandwala Builders and Ors. ... Respondents Mr. Sriniwas Deshmukh i/by Mr. Sandeep Waghmare, Advocate for the appellants. Mr. D.S. Sawant i/by Mr. A.J. Almeida for respondent no. 1. Mr. Vinod Mahadik i/by Mr. R.A. Malandkar for respondent no. 2. Mr. S.U. Kamdar, Sr. Counsel i/by Mr. Anil Rao for respondent nos. 3 to 10. CORAM : SMT.R.P. SONDURBALDOTA, J. DATED : APRIL 25, 2011 P.C. 1. The appellants by this First Appeal challenge the judgment and order of dismissal of their suit by the Bombay City Civil Court. 2. Respondent no. 2 Mumbai Municipal Corporation is the owner of two buildings by name Nazarali Building and Agha 2 FA1498.06 building situate at C.T.S. No. 3598 and 3599 respectively. The appellants are some of the tenants of respondent no. 2 in Nazarali building. Agha building is situate to the East of Nazarali Building. It is alleged that in the year 2004, the appellants learnt that the property on which Agha building is situated was to be redeveloped by demolishing the existing buildings and constructing multi-storied building thereon. Therefore, the appellants by their letter dated 29th September, 2004 requested the Ward Officer to ensure that safety of their building is not affected. Thereafter the work supervisor of respondent no. 1 allegedly told the appellants that for the foundation of the proposed building, the pump room, water tank located the open space between two buildings was required to be demolished. Therefore, they filed S.C. Suit No. 4782 of 2004 for a declaration that the sanction granted by respondent no. 2 for construction of any building in the open space between two buildings is illegal and in violation of the law. According to appellant, the open space admeasures 50 ft x 21 ft. The appellants additionally sought permanent injunction to restrain the respondents i.e. 3 FA1498.06 builders, Mumbai Municipal Corporation and the occupants of Agha building from carrying on any excavation, digging or construction work in the open space between the two buildings. The respondents filed their written statements denying that there was any open space between the two buildings as claimed by the appellants. According to respondents, there is only 3 ft. wide passage between the two buildings which was used by the appellants for going to the pump room of their building. The respondents in the written statement as also in the statement before this court have made it clear that they are not desirous of demolishing either the pump room or the water tank of the appellants. According to the respondents Agha building, a cessed building had deteriorated to such an extent that its demolition and reconstruction/redevelopment was the only alternative available to its occupants. Therefore, on submission of the scheme by the occupants of the said Agha building, respondent no. 2 as a planning authority and also as landlord sanctioned and approved the scheme for reconstruction and redevelopment. 4 FA1498.06 3. Obviously, the bone of contention between the parties is the existence of common passage between the two buildings which the appellants describe as compulsory open space. The appellants have made a specific claim that the same admesures 21 ft x 50 ft whereas respondents claim that is only of the width of 3 ft. In view of this dispute as regards the size of the passage what was expected from the appellants was cogent evidence in support of their claim that the passage admeasures 21 ft x 50 ft. But the evidence produced by the appellants fell short. The appellants examined husband of appellant no. 8 in support of the claim. He produced documents of correspondence with Mumbai Municipal Corporation and certified copy of the city survey plan. None of the documents produced specifically indicate the size of the open space. Respondent no. 2 Corporation examined its Assistant Engineer and respondent Nos. 3 to 10 examined one witness in support of their respective claims. On appreciation of evidence the trial court found that the appellants had failed to establish that there was open space admeasuring 21 ft x 50 ft between Agha building and Nazarali building as claimed in the plaint. It 5 FA1498.06 held that the width of the space between two buildings was 3 ft. It also held that the respondents had succeeded in establishing that the water tank constructed by respondent no. 2 for the appellants was situated on the land bearing C.T.S. No. 3598 and not in any compulsory open space as alleged. 4. The claim of the appellants of existence of compulsory open space admeasuring 21 ft x 50 ft. could have been established either by producing building construction plans or city survey records or also by examining witnesses who could have stated from their personal knowledge that the passage admeasures 21 ft x 50 ft.. The appellants have not produced any building construction plans. The city survey plans produced by them does not give any idea of the overall dimensions of the space between two buildings. Therefore, it was necessary for the appellants to examine some officer from the city survey office to explain the city survey plans in order to establish their case. In the absence of this evidence, the bald statement made by the solitary witness of the appellants cannot be accepted. Surprisingly, none of the appellants who are 6 FA1498.06 the occupants of the premises in Nazarali building have examined themselves. They have rested their case by examining a relative of one of the appellants. 5. The trial court in its detailed decision has rightly held that the evidence brought by the appellants before the court does not establish existence of open space admesuring 21 ft x 40 ft which was sought to be protected by the suit. It has also held that the suit as filed by the appellants is not maintainable for want of statutory notice under section 527 of the Mumbai Municipal Corporation Act. Admittedly the appellants had not given the necessary notice to the Mumbai Municipal Corporation. In the circumstances there is no merit in the appeal which is accordingly dismissed. (SMT.R.P. SONDURBALDOTA,J.)