* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.392 OF 2009 WITH CIVIL APPLICATION NO.4033 OF 2008 IN FIRST APPEAL NO. 392 OF 2009 Smt.Abrunissa wd/o.Sanaulla .....Appellant (Orig.Defd no.2) vs. 1. Mountclair Co-operative Housing Society Ltd. ....Respondent no.1/ (Orig.Plff) 2. The Municipal Corporation of Greater Mumbai ....Respondent no.2/ (Orig.Defd no.1) Mr.V.R.Tripathi,advocate for Appellant. Mr.P.S.Madkaikar,advocate for respondent no.1. Mr.Vinod Mahadik,adv.for respondent no.2. Coram : Smt. R.P.SondurBaldota, J. Dated : 17th July, 2009. PC :- 1. Considering the nature of the case, records and proceedings are dispensed with. Heard advocates for final hearing. This * 2 * First Appeal is preferred against the judgment and decree dated 27th June, 2008 passed by the Bombay City Civil court in L.C.Suit No.6406 of 1999. The appellant is original defendant no.2, Respondent no.1 is the original plaintiff and respondent no.2 is original defendant no.1. 2. Respondent no.1 filed the suit herein for implementation of Town Planning Scheme so as to have complete access to it’s building. It sought mandatory order against both the appellant and respondent no.2 for removal of the encroachment of the suit access and clear its width of 15 feet. It alleges that the appellant has carried out unauthorised extension to her premises thereby obstructing the access of the respondent no.1 to it’s property. The total width of the suit access as per the town planing scheme was 15 feet. The appellant who has her structure on Final Plot No.504A has made unauthorised construction as a consequence of which the width was reduced to 10 feet. 3. The defence of the appellant was of denial of any encroachment on the access. The appellant had been issued notice by respondent no.2 under Section 351 of the Mumbai Municipal Corporation Act, in respect of the unauthorised construction. The appellant replied the notice claiming her long standing possession. However, the Assistant Municipal Commissioner, G-North Ward passed order dated 11th September, * 3 * 2001 rejecting the claim of the appellant and directing demolition of the unauthorised construction. The appellant has filed L.C.Suit No.4886 of 2001 to challenge the show-cause notice and the final decision thereon. 4. The appellant had examined on her behalf her Constituted Attorney one Abdul Aziz. He admitted in his evidence that earlier the suit access was 15 feet in width. He was further unable to state as to when was the structure in dispute constructed. Therefore, the trial court considered the admission as regards the width of the access and the inability of the appellant in establishing authorisation of the structure in the impugned order and decreed the suit. In any case respondent no. 1 is entitled to have the Town Planning Scheme implemented irrespective of the nature of the disputed structure. In the circumstances, no disputed question of fact or law falls for consideration of this court in the instant appeal. Therefore, the appeal is dismissed in limine. 5. With the dismissal of the appeal, Civil Application No.4033 of 2008 does not survive. The same is accordingly disposed off. (Smt.R.P. SondurBaldota,J.) * 4 *