1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 599 OF 2010 WITH CIVIL APPLICATION NO.1563 OF 2010 IN SA 599/10 Shri Shantaram Rama Chavan and anr .. Appellants. Vs. Shri Waman Dharma Bhoir, deceased, through his legal heirs: 1/1.Smt Shobha Waman Bhoir and ors .. Respondents. Mr S.K.Mali, for the appellants. Mr .N. V. Walawallkar, senior counsel with Mr G.K.Keluskar for respondent no.2. CORAM : D.B.BHOSALE, J. DATED : 22/10/2010. PC : Heard learned counsel for the parties. 1. This Second Appeal is directed against the concurrent findings of fact recorded by the courts below in a suit filed by the respondents-plaintiffs for declaration and possession. It is the case of the respondents-plaintiffs that some time in 1977-1978 they had allowed the defendants to stay in the suit property bearing house no.554/D for temporary period without charging any rent/compensation. This property, according to the appellants/defendants, was acquired by the municipal council some time in 1972 and in 1979 the house property bearing T 2 no.554-D of the respondents-plaintiffs was demolished by the municipal council. It is denied by the appellants-defendants that before demolition they were put in possession of the structure belonging to the respondents-plaintiffs having the house number 554/D. After demolition, according to the appellants, they constructed a new house in 1982 and it was given the same house number being 554-D. The learned counsel for the appellants vehemently contended that the respondents-plaintiffs are taking advantage of the number of the house and claiming ownership and possession of the same. It has come on record that the house is situated on original survey no.154. Admittedly, a part of survey no.154 was acquired by the council. The acquired portion was given survey no.154/B-3 and the remaining portion was given survey no.154/A-3, which remained with the plaintiffs. After acquisition of the part of survey no.154, council constructed a school building on the same portion (154/B-3). Insofar as the plaintiff's structure which, according to the plaintiffs was given to the appellants-defendants, was never demolished since it has been standing on survey no.154/A-3 which was never acquired by the council. Since the appellants- defendants have come before the court with a specific case that the house of the plaintiff was demolished in 1979 and he constructed a new house in 1982, the courts below have 3 considered this aspect having regard to the entire evidence placed on record and in paragraph 12 of the judgment observed thus : “The defendants have not placed any document to show that the house No.554/D was owned by the appellants/defendants. The defendants' witness no.1 Shataram Chavan has specifically stated in his evidence that the suit property is owned by him and he has constructed the suit house. But in support of his oral evidence, no documentary evidence is placed on record. There was no explanation as to why the property house no.554/D stands in the name of Waman Dharma Bhoir. It is the contention of the defendants that the house no.554/D was demolished while widening the road. But no document is placed on record to show that the said house was demolished by Uran Municipal Council. Certain letters are produced on record by the defendants dated 10.1.1992 addressed to Chief Officer,Uran Municipal Council in respect of house no.554/D for recoding the name. But no evidence on record to show that when the defendants had constructed the house no.554/D, no evidence on record to show that whether he had sought the construction permission from Uran Municipal Council to construct the house, no evidence on record to show that the said property was belonging to Uran Municipal Council and he made encroachment on the property of Uran Municipal Council and constructed a house thereon.” It is thus clear that the defendants have not brought anything on record to show, as claimed by him, that he constructed the suit house in 1982. Even the witness examined by the defendants, namely, DW 2, Chief Officer-Vikas in the cross examination admitted that the suit structure shown on the south side of the map (Exhibit-51) is not within the limits of the land acquired by 4 the Uran Municipal Council bearing survey no.154/B. It further shows that the land of the plaintiffs where the suit structure is standing was never acquired by the council and, therefore, the case of the defendants that after acquisition the plaintiff's structure was demolished, has rightly been held to be not proved by both the courts below. Considering the concurrent findings recorded by the courts below and that there is sufficient material on record in support of the findings, I do not find any substance in the appeal. No substantial question of law is either raised or involved in the instant appeal. Hence, the appeal is dismissed. As requested by the learned counsel for the appellants, the impugned Judgment and decree shall not be executed for a period of six weeks from today. However, the appellants are directed to file usual undertaking in this court on or before 15.11.2010, with an advance copy thereof to the advocate for the respondents, failing which it would be open to the respondents-plaintiffs to execute the decree. Filing of the undertaking,however, shall not preclude the appellants from challenging this order in the Supreme Court, if they so desire. Certified copy expedited. (D.B.Bhosale, J.) 5