1 sa651-04 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.651 OF 2004 Kiran Mahadeo Jadhav .. Appellant V/s. Sou. Sandhya Rajaram Khude & Ors. .. Respondents ..... Ms. Leela Patil i/b. Mr. P. M. Pradhan for the appellant. Mr. N. J. Patil for respondent Nos.2 and 4. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 08, 2011. P.C.: Heard the learned counsel appearing for the appellant who is the second plaintiff. The challenge in this Second Appeal is to the Judgment of the Appellate Court to the extent which clause 2 of the operative part of the decree passed by the trial Court has been set aside. The said decree was of directing the defendants to pull down the eastern wall of CTS No.392 and to reconstruct the same as per the sanctioned plan. 2. The learned counsel appearing for the appellant submitted that the report of the Court Commissioner showed that the wall has been constructed by the defendants by carrying on encroachment on the property of the appellant. The second submission is that it was established before the trial Court that the 2 sa651-04 wall has been illegally constructed by the defendants in breach of the sanctioned plan of the Municipal Corporation and that the Municipal Corporation had issued notice to the defendants. Her submission is that examination of any officer of the Municipal Corporation was not at all necessary in the light of the notice issued by the Corporation which was placed on record. 3. I have carefully considered the submissions. The trial Court has recorded a categorical finding that the plaintiffs failed to prove that any encroachment was made by the defendants while constructing the eastern wall. From the Judgment of the Appellate Court it appears that apart from the fact that there is no Appeal or Cross objection preferred by the original plaintiffs, the finding of the trial Court on encroachment was not challenged by the appellant. 4. Only on the basis of a notice issued by the Municipal Corporation, the trial Court could not have held that the construction of the wall was contrary to the sanctioned plan. The Appellate Court was justified in interfering with the decree on the ground that no officer of the Municipal Corporation was examined to prove that the construction was in breach of the sanctioned plan. 5. Hence, no fault can be found with that part of the 3 sa651-04 impugned Judgment and decree with which the appellant is aggrieved. No substantial question of law arises. 6. It is clarified that dismissal of the Appeal will not come in the way of the Municipal Corporation initiating further action in accordance with the law. 7. Subject to what is observed above, the Second Appeal is dismissed. 8. Civil Application No.1334 of 2005 does not survive and the same is disposed of. (A.S.OKA, J.)