1 S.A.NO 48/1992. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. SECOND APPEAL NO. 48 OF 1992 The Chief Officer,Ahmadnagar Municipal Council, Ahmadnagar ..Appellants. V E R S U S 1 Shri Trimbak Sadashav Deshmukh, Aged 52 years Occupation Business. 2. Prabhakar Sadashiv Deshmukh, Age 47 years occupation business. 3. Padmakar Sadashiv Deshmukh, Age 32 years occupation business. 4. Arun Sadashiv Deshmukh, Age 32 years occupation business. Appellant No.3 Oriignal General Power of Attorney of the rest of the plaintiffs. Respondent Nos.1 to 4 r/o House No. 447, Choupati Karanja, Ahmednagar. Respondents ..... Mr.V.S.Bedre,Advocate for appellant Mr.R.R.Mantri, Advocate for respondent No.1 to 4 ...... CORAM : A.V. NIRGUDE, J. DATE : 1st OCTOBER,2009. ORAL JUDGMENT : 1. This appeal is filed challenging the judgment and decree 2 S.A.NO 48/1992. passed by 4th Additional District Judge, Ahmadnagar, in Regular Civil Appeal No. 153 of 1984. The respondents/original plaintiffs had filed the suit bearing Regular Civil Suit NO.81 OF 1976 alleging that pursuant to the appellant's notice of demolition under section 179(5) of the Maharashtra Municipalities Act,1965. of certain structures, the appellants were intending demolition of the suit structure, which was not covered by the notice action. The respondents sought perpetual injunction to prevent the appellant from demolishing the suit structure pursuant to the notice action. 2. The respondent contested the action and in the written statement they stated that suit structure was constructed on encroached Municipal land and so they would remove it. 3. The learned Trial Court framed issues, allowed the parties to lead oral as well as documentary evidence and dismissed the suit. 4. The First Appellate Court held that suit structure was part of respondent’s property City Survey No.155( House No. 447) and that appellant had tried to illegally remove it. 5. First question that arises for my consideration in this appeal is, whether there exits any substantial question of law?. Second question is, even otherwise whether appreciation of evidence of the learned Judge of First Appellate Court is perverse?. 6. Answer to both questions noted above are in negative. 7. The back ground facts leading to this litigation, are as under: 8. On 13th June 1975, the appellant Municipal Council issued the 3 S.A.NO 48/1992. notice under section 179(5) of the Maharashtra Municipalities Act, 1965. It was addressed to respondents. It stated that, the respondents at their house No.447 made encroachment on Municipal gutter and constructed Ota, staircase and bridge like structures over the Municipal gutter. The notice specifically mentioned the measurements of the bridge like structures, staircase and Ota. The notice no where mentioned that the respondents by making encroachment on Municipal gutter constructed a shop also. The notice is not annexed with location sketch showing the offending structures. 9. The respondent promptly sent a reply to this notice and admitted that they had constructed Ota as well as bridge like structures over Municipal gutter,but stated that since the width of Municipal gutter was about 10 feet,they were unable to come out of their house without having bridge like structure over the Municipal gutter. They also suggested that they would remove the structures etc. It is case of the respondents in the garb of notice, the officers of the appellant Municipal Council tried to demolish the suit structure which lies in South-East corner of house No.447. The respondents described the suit property as tin shed having measurement of 7’.6”X 5’.6”. 10. As said above, this suit structure apparently was not shown in the notice Exh.61. It was not subject of the notice action. So the appellant- Municipal Council could have made a statement in the written statement that though they intended to demolish suit structure also soon, since it was not mentioned in the impugned notice that they would follow 'due process of law' independently and take action against suit structure. This could removed the apprehension of demolition and would have served the purpose of 4 S.A.NO 48/1992. the suit. But surprisingly the Municipal Council opposed the suit and tried to justify their intended action and threat to demolish the suit structure pursuant to notice Exh.61. Due to this apparent and unnecessary dispute the Courts below were compelled to discuss as to whether the suit structure was part and parcel of House No.447, which bears City Survey No. 155. The learned Judge of the First Appellate Court has given cogent reasons and placed reliance on reliable documentary evidence and came to conclusion that suit structure in fact was part of house No. 447. In other word, he held that suit structure is not standing on the Municipal property. Despite of this clear findings on facts, this second appeal was filed. 11. The learned Advocate Mr. V. S. Bedre, appearing for appellant tried to argue that there is no documentary evidence to prove the title of respondents to the suit structure and land beneath it. He said, the City Survey record does not confer any title. As said above, the question as to whether suit structure is part of house No.447 was in fact not really pertinent. What was pertinent in dispute was whether the notice Exh.61, proposed demolition action against suit structure? And if the answer to this was in negative, then the suit would succeed and the respondents/plaintiffs would get an order of perpetual injunction for preventing demolish at least to pursuant of notice Exh. 61. But unfortunately due to rather adamant and thoughtless defence of the Municipal Council, the parties invited findings on the question 'as to whether the suit structure is part of House no. 447' and as said above findings was recorded in favour of the respondents. In view of this, there is hardly any substantial question of law involved in this appeal. 12. The second question that arises in this appeal is, whether appreciation of the evidence by the learned Judge of the First 5 S.A.NO 48/1992. Appellate Court was incorrect or perverse? The answer to this question is in negative. Having gone through the judgment of both courts below, I find that the judgment of the Trial court is impertinent. Even the learned Judge of the First Appellate Court mis-directed himself into inquiry which was not relevant and recorded the findings of fact that the suit structure was part of House No. 447 is not occupying the Municipal Property. I think although scope of suit was limited, fortunately for the respondent it got enlarged unnecessarily. And it was held that suit structure was not occupying the Municipal property and was not encroachment. In view of this finding the respondents are perpetually protected from any future action that could have been taken. Had appellants made statement that they would not pursue action started with Exh.61 against the suit structure, but would take independent action against it they had opportunity to do so in future.But now in view of the findings recorded above, the appellant is unable to take any action against suit structure, alleging that it occupied Municipal land or Municipal property. In view of this, the appeal fails. It is dismissed. ( A.V. NIRGUDE, J. ) MTK/SA.48.92 ok