: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1235 OF 2009 ALONGWITH CIVIL APPLICATION NO.3305 OF 2009 Madanlal Popatlal Charity & Sarvodaya Hospital Trust .. Appellants V/s. The Municipal Corporation of Greater Bombay, Mumbai & Anr. .. Respondents Mr. J.J. Shah for the Appellants. Mr. J.J. Xavier for Respondent No.1. Mr. S.P. Thorat a/w. Smt. V.S. Mhaispurkar, AGP, for Respondent No.2. CORAM : SMT. NISHITA MHATRE, J. DATED : 25 TH SEPTEMBER, 2009. P.C.: 1. The First Appeal has been filed against the judgment and order of the trial court in L.C. Suit No.2213 of 2007. The suit filed by the appellants has been dismissed by the trial court on 2nd May, 2009. 2. The appellants-plaintiffs have filed this suit for a permanent injunction against the respondents contending that an unauthorized construction of a : 2 : wall had commenced on their property. The plaintiffs had requested the respondent-Municipal Corporation to take action in accordance with law in respect to this unauthorized construction. However, the respondent-Municipal Corporation informed the plaintiffs that it had not constructed the wall and that it was being constructed by MHADA with the MLA Funds, for protecting the structures situated in the land slide area. 3. It appears that neither the Municipal Corporation nor MHADA, i.e. defendant Nos.1 and 2, contested the suit. No written statement was filed by them. The plaintiffs led evidence to establish that the structure had been erected in their property without authority of law. 4. The trial court surprisingly dismissed the suit without there being any contrary evidence on record led by either the Municipal Corporation or MHADA indicating that the property did not belong to the plaintiffs. The trial court held that the plaintiffs had not proved that the wall was : 3 : constructed within their property demarcated by the City Survey Officer. 5. Mr. Thorat appearing for MHADA brings to my notice the letters issued by the Deputy Engineer-I (East), MSI Board, Bombay to the Government Pleader, City Civil Court, Bombay as well as to him. The letter written to the Government Pleader, City Civil Court, Bombay on 6th July, 2007 indicates that the MSI Board (MHADA) has not constructed any wall behind the Buddha Vihar adjacent to the Sarvodaya Hospital, Ghatkopar, nor had it fixed any agency to construct the same. It appears that this letter was not pointed out to the trial Court, nor was it placed on record. The letter issued to Mr. Thorat on 25th September, 2009 by the Deputy Engineer again indicates that the Board (MHADA) has not constructed any wall behind the Buddha Vihar adjacent to Sarvodaya School No.2, Bhimnagar, Ghatkopar (West), Mumbai, nor was any agency authorized to construct the same. : 4 : 6. In view of the statements made and the instructions received by the learned Advocate for MHADA, in my opinion, the judgment and order of the trial court will have to be set aside and the suit must be decreed. 7. Accordingly, defendant Nos.1 and 2 are injuncted from carrying out any construction in the property owned by the plaintiffs. If the Corporation finds that the wall constructed behind the Buddha Vihar, adjacent to Sarvodaya School No.2, Bhimnagar, Ghatkopar (West), Mumbai, is unauthorized, it may demolish the same in accordance with law. 8. The First Appeal is disposed of. 9. In view of the above, Civil Application No.3305 of 2009 pending in the First Appeal has become infructuous and the same is dismissed. .......