This appeal challenges a trial court decree directing reconstruction of a demolished boundary wall. The Court held the wall was built on plaintiffs' land after a valid joint survey and demolished without due process by the appellant, dismissing the appeal under CPC Order XLI Rule 11.
Appeal dismissed; no costs; interim application disposed of.
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TAUSEEF LAIQUEE FAROOQUI
Digitally signed by TAUSEEF LAIQUEE FAROOQUI Date: 2023.01.21 16:04:41 +0530
Tauseef Farooqui 902-FA.595.2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.595 OF 2021
WITH
INTERIM APPLICATION NO.2188 OF 2020
IN
FIRST APPEAL NO.595 OF 2021
Shivalik Ventures …Appellant
V/s.
Adarsh Developers & Ors. …Respondents
Mr. Atul Damle, Senior Advocate a/w. Mr. Ashwin Sawlani i/by Mr.
Hassan Khan for Appellant.
Mr. Sanjeev Singh a/w Mr. Ritesh Singh for Respondent Nos.1 and
2.
Mr. Segal Todkar i/by Mr. Vijay Patil for Respondent No.3.
CORAM:AMIT BORKAR, J.
DATE:JANUARY 04, 2023
P.C.:
1.The appeal is directed against the judgment and decree
dated 2nd January 2020, passed by the learned Ad-hoc Judge, City
Civil Court, Dindoshi, Mumbai, thereby directing defendant no.2
to reconstruct partly demolished boundary wall in the same
material within a period of three (3) months from the date of
decree. The trial court in addition to the above direction restrained
defendant no.2 from disturbing possession over the suit property.
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2.The appellant is original defendant no.2. Respondent
nos.1 and 2 had filed S.C. Suit No.1022 of 2008 seeking the relief
of mandatory injunction directing defendant no.2 to reconstruct
and/or restore boundary wall on the suit property i.e. the plot of
land bearing C.T.S. No.22 (part) and the adjourning property. The
case of the plaintiffs in short is as under.
3.Plaintiff no.1 is the developer and builder carrying out
business of construction. Plaintiff no.2 is the society of slum
dwellers registered under the provisions of Maharashtra Co-
operative Societies Act, 1960. Plaintiffs had constructed boundary
wall on the suit property after joint survey of the property. It is the
case of the plaintiffs that defendant, without leaving compulsory
open space, constructed the building. On 2nd May 2008, the
defendants demolished boundary wall without following due
process of law. Therefore, plaintiffs filed the suit.
4.Defendant no.1 appeared in the suit but failed to file
written statement. The appellants (defendant no.2) contested the
suit by filing written statement contending that the notice of
survey allegedly carried out by the plaintiffs on 16th June 2006 was
not issued to the defendant no.2. After the survey measurement
dated 1st December 2006, old construction in the adjoining
property was demolished as the suit boundaries were
unidentifiable. When the plaintiffs carried out survey on 22nd April
2008 and it was revealed that the plaintiffs encroached on the
property bearing CTS No.13 (part) by constructing boundary wall.
Therefore, defendant no.2 called upon plaintiffs to demolish the
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said wall. The development on plot nos.30 and 33 (part) was
carried out after following due process. The learned trial court
framed necessary issues and after granting opportunity of hearing
and considering oral evidence lead by the parties decreed the suit.
The defendant no.2 has, therefore, filed present Appeal
challenging the judgment and decree.
5.Learned advocate for Appellant submitted that the
finding recorded by the learned trial court in relation to the issues
involved is contrary to the evidence on record. It is submitted that
the details on record are not sufficient to hold that the plaintiffs
had constructed boundary wall in the property owned by them.
He submitted that the plaintiffs failed to discharge burden cast on
them by the trial court by leading sufficient evidence on record.
6.Per contra, learned advocate for respondent nos.1 and
2-original plaintiffs submitted that the material on record in the
form of testimony of witness no.1 of the plaintiffs and report of
surveyor fixing boundaries of CTS Nos.22, 22/1 to 29 is sufficient
to prove fact that joint survey was carried out on 16th June 2006
and boundaries of properties of plaintiffs and defendant no.2 were
demarcated. It is submitted that the material evidence on record
shows that the plaintiff no.2-society constructed boundary wall
after the joint measurement on the property owned by plaintiffs.
He invited my attention to the observations of the trial court in
para 11.3. observing that defendants have not disputed the fact of
construction of boundary wall was made by the plaintiffs. He,
therefore, submitted that the demolition of wall was without
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following due process of law, and therefore, the trial court was
justified in passing decree in favour of plaintiffs.
7.Considering submissions made on behalf of both sides,
following points arise for consideration:-
(i). Whether, the plaintiffs prove that the construction of disputed wall was within the area owned by the plaintiffs;(ii) . Whether, the plaintiffs prove that defendant no.2 demolish disputed boundary wall without following due process of law;8. In order to prove that construction of disputed boundary
wall was within the area owned by the plaintiffs, the plaintiffs
have placed on record copy of application seeking measurement of
the property and the copy of measurement map issued by survey
authority. It appears that the survey authority had carried out
measurement on 16th June 2006 and fixed boundaries of CTS
Nos.22, 22/1 to 29. On perusal of the map, it appears that the
survey authority has shown new construction by red line and area
of re-development by yellow line. The boundary of CTS Nos.22,
22/1 to 29, was shown in dark black line. The plaintiffs’ witness
stated that the construction of disputed boundary wall was carried
out after joint measurement of the property. The plaintiffs has
proved survey map by examining the person having knowledge of
survey.
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9. The defendant no.2 in support of his defence examined
witness who admitted in his cross-examination that he has no
personal knowledge about the measurement. The defendant no.2
failed to prove survey map produced at exhibit-36 and 42 by
examining surveyor. The trial court, therefore, recorded a finding
that the defendant failed to discharge onus of proof on him after
the same was shifted on the defendant.
10. On perusal of evidence on record, it appears that the
trial court recorded a finding of fact based on material evidence in
the form of notice of measurement, joint surveyor’s map which
shows that Appellant constructed the buildings without leaving
open space required. Therefore evidence on record leads to the
conclusion that the boundary wall was constructed in the area
owned by the plaintiffs.
11. It is undisputed fact that the boundary wall was
constructed by the plaintiffs. The defendants have not brought on
record evidence to show that the said boundary wall was
demolished after following due process of law. Without due
process of law, the defendant no.2 could not have unilaterally
demolished disputed boundary wall. Therefore plaintiffs deserve
relief as prayed for.
8.The trial court based on the material on record rightly
held that the plaintiffs proved the fact that the boundary wall was
constructed in the area owned by the plaintiffs and it was
demolished without following due process of law. Since the
material on record is sufficient to prove demolition of boundary
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wall without following due process of law, the present appeal
needs to be dismissed by exercising power under order XLI rule 11
of the Code of Civil Procedure, 1908.
9. First Appeal is, therefore, dismissed. No costs.
10.In view of dismissal of first appeal, Interim Application
No.2188 of 2020 does not survive. It is also disposed of.
(AMIT BORKAR, J.)
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2 issues framed by the court
Whether the plaintiffs proved that the disputed boundary wall was constructed within the area owned by them.
Whether the plaintiffs proved that the defendant demolished the disputed boundary wall without following due process of law.
2 provisions across 2 enactments
Shivalik Ventures
Adarsh Developers & Ors.
Amit Borkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court