:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1723 OF 2003 Karwa Developers ..Appellant Vs. R.S. Barve and ors. ..Respondents Mr. P.S. Dani i/by Pandya Gandhi and Co. for appellant. Mr. Mohan N. Dhamal for respondent no.1. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : March 17, 2008. Date : March 17, 2008. Date : March 17, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Dani the learned counsel for the appellant - plaintiff no.4. 2. This appeal arises from the decree passed by the City Civil Court at Mumbai on 23/1/2003 thereby dismissing L.C.Suit No. 3374 of 1986. The suit was filed seeking directions against defendant no.1 to remove the tin-shed and any other construction in the open piece of land and admeasuring 10 ft. x 18 ft. The suit property was part of a larger property known as Padhyewadi located at Bhawani Shankar Road, Dadar, Mumbai and admeasuring about 5600 sq.yrds. and the :2: defendant no.1 is the monthly tenant in respect of residential room being Room No.6 in Building No.27-B on the said property. It was alleged that sometimes in the year 1980 the defendant no.1 without obtaining the landlord’s permission over-night erected a tin-shed in the open piece of land admeasuring 10 ft. x 18. The portion of the larger property and belonging to the plaintiff nos.1 to 3 was purchased by the plaintiff no.4 and the remaining 32% or so portion belonging to the Trust (Shri Ram Mandir Charitable Trust). The said Trust had applied to the Charity Commissioner for disposal of the said portion and permission was granted. However, till the suit was decided, it could not be disposed off for one or the other reasons. The defendant no.1 had opposed the suit by filing Written Statement and he claimed that the suit structure which was sought to be demolished was not 10 ft. x 18 ft. but it was 25 ft. x 16 ft. with a height of 14 ft. on the rear side and 10 ft. on the front side and that the shed was erected prior to 1976. The defendant no.1 had denied the exclusive ownership of the plaintiffs on the suit structure. :3: 3. The learned trial Judge on the assessment of the evidence adduced by both the parties and the rival submissions made, upheld the ownership of the plaintiffs to the extent of 68% and the share of Shri Ram Mandir Charitable Trust was 32%. The trial court also held that the defendant no.1 is a tenant of Room No.6 in Building No. 27-B. The objections of the defendant that the suit was not maintainable in the absence of permission from the Charity Commissioner, on account of non-joinder of necessary parties and the suit structure was part of the slum area and hence protected under the policy of the Government. Thus, almost all issues were answered in favour of the plaintiffs but the trial court refused to grant decree as prayed for only on the ground that the plaintiffs were not the exclusive owners but they were only owners to the extent of 68% of the larger property and, therefore, relief prayed for could not be granted to part owners. 4. Mr. Dani the learned counsel for the appellant has placed before me copies of the registered documents which clearly go to show that the :4: remaining 32% portion belonging to Shri Ram Mandir Charitable Trust has also been purchased by the appellant during the intervening period and, therefore, the appellant has become the exclusive owner on the entire property. Mr. Dani, therefore, submitted that the appellant is thus entitled for the decree as prayed for in the suit. The transaction to purchase the remaining 32% share of the larger property was not before the trial court when the suit was dismissed and it would be, therefore, appropriate that the suit is remanded to the trial court to decide Issue No.8 as framed by it afresh and the said issue reads, "Whether the plaintiffs are entitled for the reliefs claimed?" 5. The respondent nos.2 to 7 are not the contesting parties and the contesting party is only present respondent no.1 - original defendant no.1. The learned counsel for the defendant no.1 does not dispute the fact that the decree has been denied to :5: the plaintiffs on the sole ground that Shri Ram Mandir Charitable Trust was the owner of the remaining 32% of the share of the larger property and once the said share has been purchased by the appellant, there is no other joint owner left and thus plaintiff no.4 would be the exclusive owner of the larger property. The trial court will have to consider the same and proceed to decide Issue No.8 afresh. 6. Hence, the appeal is allowed and the impugned order is quashed and set aside. L.C. Suit No. 3374 of 1986 is restored to the file of the City Civil Court at Mumbai (C.R.No.6) so as decide Issue No.8, as quoted hereinabove, afresh. The appellant-plaintiff no.4 will take steps to bring on record all the necessary parties within three week from today and the trial court shall record its finding after taking into consideration the evidence that would be placed before it hereafter and as referred to hereinabove and record its finding on the said issue within eight weeks from the receipt of the writ from this court. Parties to appear before the trial court on 1/4/2008. Writ to go forthwith to the trial court. :6: (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)