IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.345 OF 2004. APPEAL NO.345 OF 2004. APPEAL NO.345 OF 2004. Bhupal Appa Kininge ...Appellant. Versus. Shrivmurti Shankar Nandikar & Anr. ...Respondents. Ms Archana Kolalgi h/f Shri T.S.Ingale for the Appellant. Shri Vijay Killedar h/f Shri N.V.Jadhav for the Respondent No.2. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 18th MARCH, 2008. : 18th MARCH, 2008. : 18th MARCH, 2008. P.C.: P.C.: P.C.: 1. Advocate for the appellant states that the second respondent has died on 11th December, 2007. As his heirs are not brought on record, the appeal stands abated as against the second respondent. 2. The Second Appeal is filed by the original plaintiff. The plaintiff claims to be a tenant of the first respondent in respect of the suit property bearing City Survey Nos.952, 953 and two khans in the southern portion of the shed situated on the eastern side of the City Survey Nos.952 and 953 alognwith an open space. The second respondent is a purchaser of a portion of the suit property from the first respondent. The suit for injunction was filed by the appellant-plaintiff as second respondent made an attempt to demolish old latrine and dung-pit and threatened to remove the water tap connection. The trial Court dismissed the suit and appeal preferred by the appellant has been dismissed by the District Court. : 2 : 2 : 2 : 3. The courts below have held that the appellant-plaintiff has failed to prove that he was in possession and enjoyment of the latrine and dung-pit. The Appellate Court has, however, observed that: "....Admittedly the plaintiff is tenant in the property bearing C.S.Nos.952, 953 and Southern 2 Khan property, a shed is situated to the East of it, open site situated to the shed and another shed situated to the Eastern side of the open site and scavenger passage out of C.S.No.957. It is not much disputed that the suit property is part and parcel of C.S.No.947 and it is situated in East North corner of C.S.No.947. Admittedly a public road is situated to the North of C.S.No.947. It is not much disputed that the defendant No.2 purchased the suit property by registered sale-deed on 20/1/89 by sale-deed Exhibit 125 from defendant No.1 for the consideration of Rs.21,600/-. Admittedly two latrines are situated in the suit property and the same were traditional latrines and the services of scavengers had been utilized by the original landlord for carrying night soil of the latrine. It : 3 : 3 : 3 : is not much disputed that the said latrines had been closed as per the directions of the Municipal Council, Jaysingpur in view of the provision of section 232 of Maharashtra Municipalities Act, 1965. Admittedly, at the time of filing the suit the latrines were not in use". 4. In view of aforesaid finding of fact, no substantial question of law arises. It is disclosed in the memorandum of appeal that an application is already filed by the appellant under section 24 of the Bombay Rents, Hotel and Lodging Houses Rates (Control) Act, 1947 for restoration of essential amenities. It is obvious that if the said application is pending, it will be decided without being influenced by the impugned judgments and decrees and confirmation thereof by this Court. 5. Subject to what is stated above, Second Appeal is dismissed. There will be no orders as to costs. Judge. Judge. Judge.