1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal no.431/2010 Smt. Indutai wd/o Gunwantrao Bhore and others Vs. Ku. Sajanikumari d/o Ramnathprasad Dwivedi and another. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. V. G. Bhamburkar, Adv. for the appellants. Mr. R. G. Kavimandan, Adv. h/f Advocate Khapre for the respondents. CORAM : R.M. SAVANT, J. DATED :2/2/2011. This Second Appeal takes exception to the judgment and decree dated 23/11/2009 passed in Regular Civil Appeal No. 338/2004 by which the judgment and decree passed by the Trial Court directing the appellants/defendants to remove the “L” type shed and the bathroom described in para no.3 of the suit in the Northern side courtyard within two months came to be confirmed. The appellants herein are the original defendants and the tenants of the house property bearing Municipal House No. 565/0+3, Ward no.3, Balraj Road, Dhantoli. The predecessor of the defendants was the tenant of the premises out of the said property in respect of one hall, one room, one kitchen and independent bathroom and W.C. The 2 plaintiffs had filed the suit for declaration as well as permanent injunction and mandatory injunction in respect of tin shed erected by the defendants in the rear courtyard towards northern side having 8 ft x 15 in “L” shape as also bath room having area 1.20 meters x 1.50 meters. The plaintiffs have alleged further encroachment by the defendants. The plaintiffs have made their protest through various notices issued by them as also made complaint to the Municipal Council about the unauthorised construction carried out by the defendants. However, seeing that the said protestations did not meet with the required response, the plaintiffs were constrained to file Regular Civil Suit No. 1566/1995 for the reliefs claimed. In the written statement, the defendants did not dispute their tenancy of the premises. However, it was the case of the defendants that their predecessor was tenant of newly constructed bath-room, tin-shed along with courtyard in front of the premises as well as back side and it was their case that tin-shed was temporary one for storage of some material to protect the same from rain water and that the same was constructed with the permission of the plaintiffs. 3 The parties went to the trial. The parties led evidence in support of their respective cases. The plaintiffs have relied upon the notices issued by them being 43, 44 and telegrams (Ex. 41) collectively and (Ex. 82) i. e. the reply given by the defendants through their Advocate Shri Bhamburkar. The plaintiffs had also relied upon notice issued by Nagpur Municipal Corporation being Exhibit 47. The plaintiffs also examined the Assistant Engineer of the Municipal Corporation one Ravindra Muley (PW 2). On the basis of the evidence on record, the Trial Court decreed the suit and issued directions which have been referred to in the earlier part of this order. The matter was thereafter carried in the appeal. In the grounds of the Appeal in the First Appellate Court, a ground was raised that though Ravindra Muley (PW 2) the Engineer of Municipal Corporation (Irrigation) was examined by the plaintiffs, he did not come for cross-examination and, therefore, the Trial Court had erred in taking into consideration and rely upon his deposition. The First Appellate Court on re-appreciation of the evidence on record concluded that the decree passed by the Trial Court did not require any inference and, therefore, confirmed the said decree by the impugned judgment and order. 4 It is the submission of the learned counsel appearing for the appellants that both the Courts below have erred in taking into consideration the evidence of Ravindra Muley (PW 2) in view of the fact that the said witness was not made available for cross-examination by the defendants. The learned counsel relying upon the original record of the suit submitted that in spite of numerous opportunities granted to produce the said witness, the said witness was not produced by the plaintiffs and, therefore, the decreeing of the said suit by the Courts below relying upon the said evidence was unjustified and unwarranted. In the context of the aforesaid submission, it is required to be noted that the plaintiffs are the owners i. e. landlords of the property in question the alleged unauthorised construction in the nature of the `L’ shape shed has been constructed by the appellants- defendants. Apart from the notice issued by the Municipal Council (Ex. 47) there is plethora of evidence on record produced by the plaintiffs in the nature of their telegraphic notices to the defendants asking the defendants to stop construction which was in progress at that time, as also the Advocate's notice which has been replied to by the Advocate for the defendants. It is also pertinent to note that it was the defence of the defendants that the said construction was undertaken pursuant to the permission granted 5 by the plaintiffs themselves. Both the Courts below have considered the aforesaid aspects and have recorded a finding that the defendants were not able to substantiate their case that the said construction was carried out by them with the permission of the plaintiffs. Both the Courts below have, therefore, concurrently held that the said construction being carried out by them without the permission of the owners/landlord, the same was unauthorised and illegal. In my view, merely because the Courts below to cement their finding that the said construction was unauthorised have relied upon the evidence of Ravindra Muley (PW 2) who has not been cross- examined by the defendants would not dent the case of the plaintiffs in any manner. Independent of the said evidence of PW 2 there is sufficient evidence available on record which has been considered by the Courts below while recording the finding of fact as regards the said unauthorised construction carried out by the defendants. In the teeth of the said finding of fact recorded by the Courts below, in my view the Second Appeal does not involve any substantial question of law, which is accordingly dismissed. JUDGE Ambulkar