1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.511 OF 2009 [Nagpur Improvement Trust ..vs.. Udhao Ganpatrao Gajbhiye & three others] =============================================================== CORAM: SMT. VASANTI A. NAIK, J. DATE:7TH APRIL, 2010 ORAL ORDER: Heard R.C.Chhabra, advocate for the appellant Shri G.M. Bagde, learned advocate for the respondent no.1 & 2. 2] The appellant N.I.T. is the original defendant. A suit was filed by the respondents/ plaintiffs for a declaration that the allotment of tenement by N.I.T. to the defendant no.2 was illegal. The plaintiffs pleaded that the tenement was initially allotted in the name of their son. The plaintiffs pleaded that their son however expired before the institution of the suit. It was the case of the plaintiffs that the cancellation of the allotment made by the N.I.T. in favour of their son was not proper as no pre-cancellation notice was ever served either on the deceased son or on the plaintiffs. 3] The defendant no.1/ N.I.T. denied the claim of the plaintiffs and pleaded that the son of the plaintiffs had not paid certain installments and dues which were payable towards the allotment of the tenement and hence the allotment of the tenement in favour of the son of plaintiffs on 1.8.1998 was cancelled and paper possession was taken on 18.3.1997. The N.I.T. sought for the dismissal of the suit. 4] On an appreciation of the evidence on record the trial and the appellate court held that the plaintiffs had succeeded in proving that they were in possession of the suit property and the allotment of suit property by NIT to the defendant no.2 was illegal. The Courts held that the N.I.T. failed to prove that it took possession from the plaintiffs on 2 18.3.1997. The courts found that the notice issued to plaintiffs' son Siddharth for non payment of balance consideration, at exhibit 65 was not served on the plaintiffs' son, but was served on his neighbour Sartaj Begam and hence there was no valid service of notice on the plaintiffs' son. The courts held that the plaintiffs were ready to deposit the balance consideration towards the tenement and hence the suit of the plaintiffs was decreed by the trial court and the decree was confirmed by the first appellate court. 5] The findings recorded by both the courts are based on a proper appreciation of the material evidence on record and they do not give rise to any substantial question of law. The submission made on behalf of the appellants that the suit was bad for non-issuance of the notice to the defendant no.1 NIT under the provisions of section 115 of N.I.T. Act, is liable to be rejected as this plea was not raised by the defendant no.1 in the written statement and the plaintiffs did not have any opportunity to traverse the same or to lead any evidence in regard to the same. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP.