Bombay High Court
Patricia Farrell Fernandes vs Commissioner Of Mumbai Municipal ... on 12 March, 2025
2025:BHC-AS:11564
FA-1086-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1086 OF 2022.
1. Patricia Farrell Fernandes ]
Age 58 Years, Occ. Retired having ]
address at Room No. 1086/4, Oxel Shack, ]
Digitally
signed by
TALLE
Bathseba Grove, Fernandez Wadi, J. P. ]
TALLE SHUBHAM
SHUBHAM ASHOKRAO Road Andheri (West), Mumbai- 400 061. ]
ASHOKRAO Date:
2025.03.12
16:29:09
(Since Deceased through Legal Heirs). ]
+0530
1a. Peter Farrell Antonio Fernandez ]
(Husband of the deceased Appellant) ]
Having address at Room No. 1086/4, ]
Oxel Shack, Bathseba Grove, Fernandez ]
Wadi, J. P. Road Andheri (West), Mumbai- ]
400 061. ]
1b. Farrah Peter Fernandez ]
(Daughter of the deceased Appellant) ]
Having address at Room No. 1086/4, ]
Oxel Shack, Bathseba Grove, Fernandez ]
Wadi, J. P. Road Andheri (West), Mumbai- ]
400 061. ]
1c. Marika Peter Fernandez ]
(Daughter of the deceased Appellant) ]
Having address at Room No. 1086/4, ]
Oxel Shack, Bathseba Grove, Fernandez ]
Wadi, J. P. Road Andheri (West), Mumbai- ]
400 061. ] ... Appellants.
Versus
1. Commissioner of Mumbai Municipal ]
Corporation of Greater Mumbai, Having ]
Its main office at Mahanagar Palika ]
Marg) Mumbai - 400 001. ]
2. M/s. B. R. Developers ]
A Partnership firm registered under The ]
Indian Partnership Act, 1932 having ]
office at "Sea Breeze" Shop No. 11, ]
Ground Floor, 81 Mori road, Mahim ]
(West), Mumbai- 400 016. ] ...Respondents.
Shubham Talle 1 of 40
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FA-1086-2022.doc
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Mr. Sunny Singh, Mr. Pradip Shukla and Mr. Divakar N. Dhadhich i/by Pradip
Shukla & Co., for the Appellant.
Ms. Vidya Vyavhare for the Respondent No. 1-Corporation.
Mr. P. J. Thorat i/by Ms. Aditi S. Naikare, for the Respondent No. 2.
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Coram : Sharmila U. Deshmukh, J.
Reserved on: January 14, 2025.
Pronounced on : March 12, 2025.
JUDGMENT :
1. The First Appeal is at the instance of Original Plaintiff challenging the Judgment and order dated 5th March, 2020 passed in S. C. Suit No. 327 of 2008 by the Bombay City Civil Court at Bombay Borivali Division, Dindoshi(Branch), dismissing the suit filed inter alia challenging the notice dated 27th December, 2007 issued under Section 351 of the Mumbai Municipal Corporation Act, 1888 ("the MMC Act"). For sake of convenience the parties are referred to by their status before the Trial Court.
PLEADINGS:
2. The case of the Plaintiff is that she is the Tenant/Occupant of suit premises being Room No. 1086 (4) admeasuring approximately 775 to 800 sqr. ft. situated at Andheri, Mumbai for last 25 years. Initially the suit was filed only against the Corporation and subsequently the Defendant No 2 who claimed to be the landlord of the property, applied for impleadedment and was impleaded. It was pleaded in Shubham Talle 2 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc amended plaint, that Defendant No. 2, though claiming to be landlord, has not issued any letter of attornment to the tenants and has refused to accept the rent tendered by the Plaintiff. The Defendant No. 2 intending to develop the property has managed to evict all tenants except the Plaintiff.
3. It was further pleaded that on 27 th December, 2007, the Municipal Commissioner had issued notice to the Plaintiff under Section 351 of the MMC Act alleging unauthorized extension to the existing structure which was replied on 31 st December, 2007. On 13th February, 2008, she received rejoinder from the Corporation stating that the documents submitted by her were not enough to deal with the matter and rejected the request of personal hearing in the matter and threatened demolition within seven days. It was pleaded that the Plaintiff has purchased the suit premises from the outgoing tenant with the consent and permission of the then landlord Shri. Jayantilal M. Desai who has issued rent receipt in her name. The Defendant No. 2 has filed R. A. E. Suit No. 143 of 2009 in the Small Causes Court which is pending on ground of arrears of rent, which makes the intention to evict clear.
4. The Corporation filed its written statement contending that upon receipt of complaint from Defendant No. 2, the site was visited on 16th August, 2007 by the Junior Engineer who found unauthorized Shubham Talle 3 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc erection of brick pillars adjacent to the structure approximately 8 ft in height in progress. As no permission was shown, notice under Section 354-A of the MMC Act was pasted on the suit site and photographs of the work being commenced were taken by the Officer. Despite the stop work notice, the construction was continued and on 4 th December, 2007 at 12.30 p.m. the Junior Engineer of the Municipal Corporation found "unauthorized extension to the existing structure by side B.M. wall and A.C. sheet roof admeasuring 8'.3"x19'.8", (ii) 10'.6"x6'.00" and
(iii) 4'.6"x11'.3" and unauthorized erection of shed abutting structure upto compound wall admeasuring 5'.0" x19'.6" and 30'.0" x (10'.0"+5'.00") average width. No permission was shown to the officer who took the complete measurement of the unauthorized construction and shed and prepared his inspection report. On 27 th December, 2007, show cause notice was issued to the Plaintiff to which reply was received on 31st December, 2007 denying the contents. The Plaintiff failed to prove the authorisation or existence of the notice structure before the datum line. It was contended that the original structure as shown in the rough sketch to the 351 notice is not in dispute but the dispute is regarding the extensions carried out by the Plaintiff along with erection of shed within the compound of the said structure. The documents produced by the Plaintiff pertain to the original structure and not for the unauthorized construction. The Plaintiff has Shubham Talle 4 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc constructed the notice structure in the compulsory open space in extension of original structure without permission of the Corporation and therefore the order dated 13th February, 2008 has been rightly passed.
5. The Defendant No. 2 filed its written statement contending that they are the owners of the immovable property bearing Survey No. 1086 under registered deed of conveyance dated 12 th September, 2006. CTS 1086/4 is one of the rooms admeasuring 17.6 sqr. Mtrs. The city survey plan shows that there is open unbuilt space adjacent and around Room no. 1086/4 whereas at site it can be found that the Plaintiff has encroached upon the open space right up to the compound wall. Since the year 2003 and 2004 the Plaintiff had tried to encroach by putting up tarpauline sheets, cement sheets for few days and gradually enclosing the portion so covered by constructing low B.M. Walls and installing T. W. Posts and corrugated Iron Sheets Roofs.
In January 2007, she had got substantial illegal encroachment construction in place for which complaint was lodged on 12 th January, 2007 with BMC and thereafter again on 22nd February, 2007 which were ignored and thereafter complaints were again filed on 20 th July 2007 and 24th July 2007. On 16th August, 2007 the junior officer visited who found the work in progress and issued notice under Section 354-A and subsequently on 27th December, 2007, considering the extensive illegal Shubham Talle 5 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc construction, notice came to be issued under Section 351 of MMC Act. EVIDENCE:
PW-1:
6. Plaintiff examined herself and deposed as to the contents of the plaint. In her deposition she produced the Section 351 notice dated 27th December, 2007-Exhibit 25, her reply dated 31 st December 2007-
Exhibit 26, order of BMC dated 13 th February 2008- Exhibit 27, original rent receipt dated 1st June 1984- Exhibit 28, correspondence between the Plaintiff and Defendant No 2 regarding tender of rent Exhibit 29 to 31, copy of Application to Corporation seeking copy of sanctioned plan dated 16th February, 2008- Exhibit 32, NC complaint dated 23 rd October 2008- Exhibit 33, letters addressed to Corporation Exhibit 34 and 35, NC dated 31st October 2008- Exhibit 36, letter dated 31 st October 2008 to BMC - Exhibit 37, RAE Suit filed by Defendant No 2- Exhibit 38, photographs of BMC Officer pasting Section 354-A notice on Plaintiff's structure Exhibit 39. .
7. In the cross-examination, she has maintained that her tenement is consisting of hall, kitchen and bathroom approximately 750 sqr. ft. She has admitted that there is no agreement executed between her and the landlord before taking the tenement on rent and that there is about 6 ft distance between her tenement and compound wall. She has stated that she is tenant in the premises since 1 st June 1984 and Shubham Talle 6 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc she is not aware as to whether 750 sqr. ft. is constructed portion plus open space or it is only constructed portion. She has admitted that she has not filed any documents to show that the area of structure was 750 sqr. ft. in the year 1984 when she was inducted as tenant. She has further admitted that she has not obtained copy of city survey record in respect of disputed construction.
DW-1:
8. The Defendant No. 2-Landlord was examined as DW-1 who deposed as to the contents of his written statement. He produced copy of Resolution dated 5th February, 2018-Exhibit 52, registered deed of confirmation dated 17th May, 2005 along with agreement for sale dated 30th December 1996-Exhibit 53, copy of deed of conveyance dated 12th May 2006-Exhibit 54, certified copy of Rule card of CTS No. 1086/4-Exhibit 55, certified copy of city survey plan dated 13 th January 2006-Exhibit 56, letter dated 23rd January, 2009 issued by city survey office-Exhibit 57, certified copy of city survey plan dated 23 rd January, 2009 Exhibit 58, letter of attornment dated 12 th May 2006-Exhibit 59, office copy of complaints dated 12th January 2007, 22nd February 2007, 20th July 2007, 24th July 2007- Exhibit 60 to 63, Application dated 6 th November 2013 and reply under RTI-Exhibit 64 to 66, copy of Section 351 notice dated 27th December 2007-Exhibit 67, letter dated 2nd October, 2009 addressed by neighboring society-Exhibit 68, and copy Shubham Talle 7 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc of order dated 7th October, 2008 passed in AO No. 490 of 2008-Exhibit
69.
9. In cross examination, he has admitted that when he purchased the property, the Plaintiff was already in possession of the suit premises/disputed premises as tenant. He has deposed that he is not aware about the exact area which was handed over to the Plaintiff by the previous landlord. He has admitted that there is only one tenant i.e. plaintiff at present and all others have vacated and that eviction suit is pending against the Plaintiff before the Court of Small Causes. He has admitted that as no notice was issued to the Plaintiff by the previous landlord for addition and alteration he has not annexed any such notice. He has deposed that the addition and alteration was made in the year 2006. He has deposed that he has taken photographs in the year 2006 after conveyance but he has not filed this photographs. DW_-2:
10. On behalf of the Defendant No. 1-Corporation, Junior Officer Shailesh Gaud was examined as DW-2, who deposed as to the contents of the written statement. An additional examination-in-chief was filed by DW-2 and he produced the copy of the notice dated 16 th August, 2007 issued under section 354-A of the MMC Act-Exhibit 70, copy of Panchanama dated 16th August, 2007-Exhibit 71, inspection report dated 4th December 2007-Exhibit 72, copy of notice dated 27 th Shubham Talle 8 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc December, 2007 issued under Section 351 of the MMC Act-Exhibit 73 and copy of order dated 13th February, 2008 issued under Section 351 of the MMC Act- Exhibit 74.
11. In the cross examination he has stated that the procedure followed is that after receiving complaint of illegal construction, the engineer visits the site and asks for permission of construction and if no permission is shown measurement of unauthorized work is taken, photographs are taken, and stop work notice is issued. He has admitted that he has not annexed the complaint made by Defendant No. 2 to his evidence affidavit. He has admitted that at the time of his visit there were two pillars constructed which were not touching the Plaintiff's premises. He has stated that he asked the labourers the name of the person constructing the pillars and they have given the name of the Plaintiff. He has admitted that the name of labourers is not recorded in panchnama and name of Plaintiff is not written in the impugned notice. He has admitted that he was arrested by anti corruption bureau in connection with bribery case.
DW-3:
12. One Anil Mohan Patel, occupant of room No. 8, was examined as DW-3. He has deposed that he is presently working at Shoreline Hotel Private Ltd and the then partner of Defendant No. 2 was also Director of Shoreline Hotel Private limited. In or around the year 1996 Shubham Talle 9 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc and 1997, the Director- Haiderali A. Jiwa Bharwani permitted him to reside in Room No 1086/5 next to notice structure, without payment of rent and in return he used to look after the property. He has deposed that there was always dispute between Plaintiff and him. He has deposed that the original area of the premises occupied by the Plaintiff was 17.6 sqr. mtrs and since ending the year 2006 the Plaintiff gradually started encroaching upon the open unbuilt space/ common gully adjacent and around the Room No. 1086/4. He submits that in view of the illegal and unauthorized work of extension done by Plaintiff by encroaching upon the common gully, the Plaintiff blocked the drainage line and drainage chamber causing overflow of drainage water into his room. He has deposed that considering the nuisance, he shifted to room bearing CTS No. 1086/3 since the year 2007. In the middle of April-2007 the Plaintiff began to build over the encroachment done by her in the open unbuilt space and on 14 th April, 2007 he has taken photographs which were produced. He has further deposed that in the month July-2007 the Plaintiff had carried out illegal and unauthorized permanent construction and is now attempting to put up further construction in the common gully behind room bearing CTS No. 1086/4. He has deposed that he had addressed letter dated 26th July, 2007 to Assistant Commissioner about the unauthorized work. He has further deposed that the Plaintiff has Shubham Talle 10 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc constructed low wall/ pillar and placed private gate and flower pots cordoning of the open space behind his room No. 1086/5, which are photographed by him and were produced. He deposed that further complaint was made by him to the Assistant Municipal Commissioner on 14th June, 2008 which was produced on record and the copy of the letter was also given to the Senior Inspector Versova Police Station. The photographs produced by him marked as Exhibit-78, and 80 collectively. The letters produced by him were also marked as Exhibits 79 and 81.
13. In the cross examination, he has admitted that he does not have any document to show that from 1996 to 2012 he was residing in the structure adjacent to the Plaintiff's structure. He has further admitted that he has does not have photographs of original structure prior to alleged encroachment. He has further admitted that he does not have documentary proof to show that original area of premises occupied by the Plaintiff was room admeasuring 17.6 sqr. mtr. He has admitted that in respect of his complaints the corporation and the police have not taken any action against the Plaintiff. He has stated that the Plaintiff and he shared good relation and he used to go to the house of the Plaintiff and saw the internal structure. He has admitted that the Defendant No. 2 permitted him to stay in one of the rooms as he did not have any residential premises.
Shubham Talle 11 of 40
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FA-1086-2022.doc
14. The Trial Court framed and answered the issues as under:
Sr. Issues Findings Nos
1. Does Plaintiff prove her lawful possession over In the negative. suit room ?
2. Does plaintiff prove that the defendant no. 1 In the negative. and 2 are trying to demolish the suit premises without following due process of law ?
3. Does plaintiff prove that the notice dt. In the negative. 27.12.2007 issued under section 351 of MMC Act is illegal, bad in law and not binding on her ?
4. Does plaintiff proves that she is entitled for In the negative. declaration and permanent injunction ?
5. Does plaintiff proves that suit structure is legal In the negative. or authorised ?
6. Whether the suit is bad for want of statutory In the negative. notice as required under section 527 of MMC Act ?
7. What order and Decree ? As per final order.
15. The findings of the Trial Court can be broadly summarized as under:
a) The Plaintiff has not filed any document to show that she acquired tenancy rights in respect of an area of suit structure admeasuring 775 to 800 sq. ft. in the year 1984.
b) In the registered agreement for sale of 1996, executed between the erstwhile landlord and Defendant No. 2, the list of tenant includes the name of the Plaintiff in respect of room no. 33 for an area admeasuring Shubham Talle 12 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc 17.6 sqr. mtr. The registered deed of conveyance and Rule Card disclosed that the Plaintiff is tenant of CTS No 1086(4) since 1984 and she acquired area of 17.6 square meters and she is not in possession of remaining area by way of lawful means.
(c) The documents produced like rent receipt, transfer of tenancy right, permission given by landlord to cover otla, electricity bill correspondence are not sufficient to prove authorization of the structure. The City Survey plan dated 23 rd September, 2009 and the photographs shows unauthorised construction as an extended construction abutting the suit premises in red colour.
(d) The Panchanama prepared by the officer of Corporation dated 16 th August, 2007 clearly shows unauthorized erection of brick pillars.
(e) The Plaintiff has challenged only notice dated 27 th December, 2007 and not order dated 13th February, 2008 and therefore the Plaintiff cannot get relief only in respect of notice.
Submissions:
16. Mr. Singh, learned Counsel appearing for the Appellant submits that the dispute is only about the area and not about Plaintiff's lawful possession. He submits that the Plaintiff's case of being in possession of area admeasuring 775 to 800 sqr. ft. has been admitted by Defendant No. 2 in his RAE Suit No.143 of 2009 and the allegation is that the tenancy is only in respect of 188 sqr. ft. He submits that the Shubham Talle 13 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc entire area was handed over to the Plaintiff by the earlier tenant with consent of landlord. He points out the admission of DW-1 that he is not aware of the exact area handed over to the Appellant by the previous tenant. He submits that the conveyance with Defendant No. 2 has been executed on 12th May, 2006 and the admitted position is that the erstwhile landlord has not taken any steps alleging encroachment and even after May-2006 no civil proceedings were initiated by the Defendant No. 2 against the alleged encroachment.
17. He would further submit that the Trial Court has taken into consideration Defendant No 2's documents to which Plaintiff is not a party, while ignoring the letter dated 1st June, 1984 issued by the erstwhile landlord to the Plaintiff permitting her to close otla upon payment of Rs. 300/- per year and the letter dated 15 th December, 1984 by which the erstwhile landlord have given permission for repair and enclosure of the side portion.
18. He submits that before the Trial Court, the validity of the notice dated 27th December, 2007 was in question and therefore Issue Nos. 1 and 2 could not be framed. He submits that Defendant No. 2 has averred in his RAE Suit No. 143 of 2009 that the property tax bill issued by the Assessment Department of MCGM as per the old records is appearing prior to 1961-1962 and has thus admitted the existence of the suit premises prior to 1961-1962. He submits that the Defendants Shubham Talle 14 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc have not produced any development permission or sanction plans to indicate when the notice structure was constructed and the specifications thereof and therefore it will have to be inferred that the notice structure was in existence prior of the datumline. He submits that the initial burden is upon the Corporation to prove unauthorized construction. He submits that the Appellant by letter dated 16 th February, 2008 applied to the Corporation for providing the assessment records and the sanction layout which the corporation failed to provide. He submits that the best evidence was in possession of the owners and Corporation as regards the development permission, sanction plans and assessment records, which they had failed to produce.
19. He submits that considering the complaints addressed by the Defendant No. 2 from 12th May, 2006 to 24th July, 2007 the notice structure existed on those dates and no evidence has been produced of on going construction by Plaintiffs. He submits that the reliance placed by the Trial Court on the city survey plan, which does not show any dimensions, to come to finding that the notice structure is unauthorized is clearly misplaced as the complaints of the Defendant No. 2 of the year 2006 are prior in time as also the impugned notice dated 27th December, 2007.
20. He submits that no action was taken pursuant to notice dated Shubham Talle 15 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc 16th August, 2007 under Section 354-A of the MMC Act and the Inspection Report dated 4th December, 2007 also mentions that no notice under Section 354-A of the MMC Act was issued for the notice structure. He would further submit that the Trial Court has erroneously relied upon the photograph "Article B" taken on 26 th August, 2007 which was not proved. He submits that the finding of the Trial Court that there is no challenge to the order dated 13 th February, 2008 is misplaced as the notice of 27 th December, 2007 itself contemplates demolition of the notice structure without need to pass any further order and the communication dated 13th February, 2008 is mere confirmation of the impugned notice and therefore the failure to challenge the communication of 13.02.2008 is immaterial. In support he relies upon the following decisions:
Vadilal Maganlal Trevadia vs. Bombay Municipal Corporation 1 Sunip Kumar Sen vs. The Mumbai Municipal Corporation of Greater Mumbai. (passed by this Court in (Original Side) Writ Petition No. 3496 of 2022 dated 14th February 2024)
21. Per contra, Ms. Vyavhare, learned Counsel appearing for the Respondent-MCGM has taken this Court through Section 351 notice and would submit that the unauthorized construction is shown as three rooms on three sides of the original structure. She submits that 1 2021 (1) Mh.L.J. 157 Shubham Talle 16 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc the site inspection conducted for action under Section 351 of the MMC Act shows extension and additions to the existing room by giving specifications. She would further submit that the order of 13 th February, 2008 has not been challenged. She would further point out to Section 354-A notice issued on 16th August, 2007 which shows the ongoing construction of erection of brick walls adjacent to the structure and would submit that between the period of August-2007 to the site visit on 4th December, 2007, rooms on the three sides were constructed. She submits that the burden is on the Plaintiff to show sufficient cause which burden has not been discharged by the Plaintiff. She submits that decision relied upon by the Appellant is inapplicable as the issue therein was of reconstruction. In support, she relies upon following judgment.
Seema Arshad Zaheer & Ors. vs. Municipal Corporation of Greater Mumbai & Ors.2
22. Mr. Thorat, learned Counsel appearing for the Defendant No. 2 has taken this Court in detail through the averments in the plaint and would submit that the Plaintiff came in possession in the year 1984. Pointing out to the prayers, he submits that that there is no challenge to the order passed under Section 351 of the MMC Act. He submits that the action was taken pursuant to the complaint by Defendant No 2 2006 (5) SCC 282 Shubham Talle 17 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc 2 by letter of 12th January, 2007 alleging that she has illegally added to the said structure and has encroached in the backside gully and also added height to the premises. He would further point out the complaint of 20.07.2007 complaining about illegal construction and addition of entire two rooms and toilet structure and also large portion of open compound by putting A.C. sheets roofs and T.W. Posts. He submits that in the written statement the Corporation has specifically pleaded that on 16th August, 2007, when the officer visited he found unauthorized erection of brick pillars adjacent to the structure approximately 8 ft in height. He submits that the Defendants has proved the specifications of the original structure by producing on record, the Rule Card and list of tenants annexed to the agreement executed between the erstwhile landlord and the Defendant No. 2 which showed that the Plaintiff was tenant/occupant of area admeasuring 17.6 sqr. mtr. He would further submit that two city survey plans was produced on record and the map of 2006 does not show any construction in red ink whereas the map of 2009 shows red ink construction. He submits that the purpose of the city survey plans is not to show the illegal construction but the variation in the plans of 2006 and 2009.
23. He would further submit that it is admitted by Plaintiff that she has not filed any document to show that the area of structure was 750 Shubham Talle 18 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc sqr. ft. in the year 1984 when she was inducted as a tenant and that she has not obtained a copy of city survey record in respect of the disputed construction. He would further point the evidence of the Corporation specifically deposing in respect of unauthorized extension being carried out and the photographs showing the suit structure. He submits that it is evident from the material produced on record that there is unauthorized extension to the original structure. He submits that DW-3 had filed complaint on 26th July, 2007, that the Plaintiff has encroached into open space and has constructed three rooms without any permission. He submits that complaint was also lodged on 16 th June, 2008 by DW-3 with the Assistant Municipal Commissioner. He would submit that the photographs on record shows service of notice under Section 354-A upon the Plaintiff which has been suppressed by her in the plaint. He submits that no effort was made to seek copy of the sanctioned plan by the Plaintiff and produce the same and therefore she has failed to prove that the construction was either authorized or tolerated. In support, Mr. Thorat, relied upon following judgments:
Sandesh Sonu Gawalkar vs. Municipal Corporation, Gr. Mumbai (passed by this Court in Appeal From Order No. 686 of 2022 dated 23rd August 2023).
Kapil Co-op. Hsg. Soc. Ltd. vs. Suniel B. Shukla (passed by this Shubham Talle 19 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc Court in First Appeal No. 972 of 2009 dated 15 th September 2009).
24. In rejoinder, Mr. Singh would submit that in year 2007, the complaint lodged by the Defendant No. 2 refers to earlier complaints of 2003-2004 whereas the CTS plan of the year 2006 does not show any illegal construction.
25. The following points arise for determination:
(1) Whether in light of the reliefs sought in the Plaint, the Trial Court was right in framing and answering the issue of lawful possession of Plaintiff over the suit premises?
(2)Whether the notice dated 27 th December, 2007 issued under Section 351 of the MMC Act is illegal, null and void, and, liable to be quashed and set aside?
(3)Whether in the absence of challenge to the order dated 13 th February, 2008, the suit must fail?
AS TO POINT NO 1 :
26. The Trial Court has framed an issue of lawful possession of the Plaintiff over the suit premises, which is described in the plaint as Room No. 1086(4) admeasuring 775 to 800 square feet. The substantive relief sought is prayer clause (a) which reads as under :
"[a] That it be declared that the Defendant No. 1 and 2 and their officers, agents and or any person and or body of persons claiming through them are not legally Shubham Talle 20 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc entitled to demolish and or interfere with the Plaintiffs peaceful, use occupation or possession of the suit premises any allege unauthorized part thereof as described in the Exhibit-B and under the said notice dated:- 27th December 2007 herein above, and more particularly describe and depicted in the schedule detailed in Exhibit A to the Plaint and or part thereof without first adopting the due process of law which is otherwise legal."
27. The plaint seeks substantive relief of prohibitory injunction restraining the Defendants from demolishing or interfering with the Plaintiff's possession of the suit premises or alleged unauthorised part by implementing the notice dated 27 th December, 2007. The prayer when considered in the context of pleadings in the plaint makes it evident that the challenge in the suit was to the validity of the notice dated 27th December, 2007 issued under Section 351 of MMC Act by the Corporation threatening demolition of the suit premises. The only issue which therefore arose for consideration, was the validity of Section 351 notice. What was under determination of the Trial Court was whether the notice structure was required to be protected and the issue of Plaintiff's lawful possession was immaterial for the said determination.
28. In answering the irrelevant issue of possession, the Trial Court has transgressed its jurisdiction and has ventured into the tenancy rights of the Plaintiff over the suit premises admeasuring 775 to 800 Shubham Talle 21 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc square feet. The Trial Court has rendered a finding that the Plaintiff is tenant of area admeasuring 17.6 square meters, which rights could not have been declared by the Civil Court. To arrive at the said finding, the Trial Court has considered the Plaintiff's evidence to hold that there is no document to show that she acquired tenancy right of area of suit structure of 775 to 800 square feet. The question of tenancy was not the subject matter of determination and therefore the extent of Plaintiff's tenancy was immaterial.
29. The framing of the issue of Plaintiff's lawful possession would indicate that the Trial Court lost sight of the subject matter and has treated the suit as one filed by the landlord for removal of encroachment or recovery of possession of encroached portion. Even otherwise, the findings of Trial Court on aspect of possession cannot be sustained. The Trial Court committed an error in holding that there is no document to show that the Plaintiff is occupying 800 square feet of CTS No 1086(4), when the possession of the Plaintiff has been admitted by the Defendants. The Trial Court failed to appreciate that considering the subject matter of the suit, there was no question of deciding whether the possession was by way of lawful means. The finding on the Plaintiff's lawful possession is based on adjudication of the extent of the Plaintiff's tenancy which was not within the jurisdiction of Civil Court. The issue of the Plaintiff's lawful possession Shubham Talle 22 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc qua her tenancy rights thus could not be framed and answered by the Trial Court.
30. Point No (I) is accordingly answered in favour of the Plaintiff. AS TO POINT NO (2):
31. The impugned notice is issued under Section 351 of MMC Act which provides that where the erection of any building or execution of any such work as described in Section 341 is commenced contrary to the provisions of Section 342 or 347, the Commissioner is required to issue notice to show cause why such building or work shall not be removed, altered or pulled down. Whether there is any foundation for issuance of such notice to the Plaintiff is required to be seen.
32. The case of Plaintiff is that she was inducted in the year 1984 as tenant of suit premises which admeasured 775 to 800 square feet and there is no addition/alteration carried out by her. Her testimony has not been shaken in the cross-examination. Though the Plaintiff has admitted that she has no document to show that she was put in possession of the suit premises of area of about 775 square feet in the year 1984, the induction of Plaintiff as tenant in the year 1984 is admitted position. It is also admitted by DW-1 Landlord that he is not aware of the exact area of which the Plaintiff has been put in possession. He has further admitted that when they purchased the property, the Plaintiff was already in possession of the suit Shubham Talle 23 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc premises/disputed premises as tenant. The admission, when read in the context of the suit premises/disputed premises described in the plaint as an area of 775 to 800 square feet, amounts to an admission that the Plaintiff when inducted in the year 1984 was put in possession of an area admeasuring 775 to 800 square feet. The testimony of Plaintiff finds support in the admission of DW-1 landlord.
33. The case of the Plaintiff further gets strengthened by the fact that despite being in possession of best possible evidence, the Defendants have not failed to produce the same. DW-1 has deposed that the three main structures which included CTS No 1086(4) are assessed individually by the Defendant No 1 Corporation in their Assessment records and has given their assessment numbers. Further in his RAE suit he has admitted that the property is existing prior to the year 1961-1962. The Plaintiff being a tenant would not be in possession of relevant property documents to substantiate her case of position of suit structure in the year 1984 when she was inducted as tenant. DW-1 landlord was in possession of best evidence in form of sanctioned plans and assessment records which would have substantiated the position at site at the inception of Plaintiff's tenancy but failed to produce the same.
34. In Gopal Krishnaji Ketkar vs Mohamed Haji Latif 3 the Apex 3 AIR 1968 SC 1413 Shubham Talle 24 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc Court observed as under:
"Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
This passage was cited with approval by this Court in a recent decision--Biltu Ram & Ors. v. Jainandan Prasad & Ors.(1). In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desrai Ranjit Singh & OrS.(2) "But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither Shubham Talle 25 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents." But Shah, J., speaking for the Court, stated:
" The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration(g) of s. 114 of the Evidence Act, and also an impressive body of authority."
35. It is therefore no answer to say that the burden of proof was upon the Plaintiff when DW-1 was in possession of best evidence and has withheld the same from the Court.
36. The pre-requisite for issuance of Section 351 notice to the Plaintiff is that the work of erection or execution of any work should have been commenced or carried out by the Plaintiff contrary to Section 342 or 347 of MMC Act. To assert the position that the Plaintiff carried out unauthorised construction in the year 2006-2007, DW-1 has deposed that the Plaintiff was gradually encroaching into the property. What is surprising that instead of adopting civil proceedings for injunction or for removal of encroachment, DW-1 has indulged in addressing complaints to the Corporation without taking any effective steps to put a stop to the alleged encroachment. It is unacceptable that the landlord would wait for the unauthorised construction to be Shubham Talle 26 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc completed, instead of taking steps to protect his property.
37. Though the evidence of DW-3 has been led to establish the unauthorised construction at the hands of the Plaintiff, the evidence of DW-3 does not inspire confidence as he has admitted that he has no proof to show his residence in the adjacent structure for the period 2006 to 2012 or to show that the original premises was admeasuring 188 square feet coupled with the admission that he is employed by Defendant No 2 landlord. It is also surprising to note that when the alleged construction was being carried out by Plaintiff in the year 2006 , instead of bringing it to the notice of Defendant No 2 landlord, he was addressing complaints to Corporation.
38. Coming to the evidence of DW-2, Junior Engineer of Corporation, the inspection report for action under Section 351 of MMC Act has been produced by him. The Inspection Report Exhibit 72 records that on 4th December, 2007 at around 12.30 p.m. the Junior Engineer inspected the premises and found extensions and additions to the existing structure and records the measurements of the unauthorized construction. Pertinently Column 9 pertaining to the details whether the structure was detected while under construction and whether notice under Section 354-A has been issued and served, the Inspecting Officer i.e. Junior Engineer has filled the same in the negative. Based on mere visual inspection carried out on 4 th December, Shubham Talle 27 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc 2007, the Junior Engineer has noted that there was an original room existing and there are unauthorized extensions and additions carried out to the original structure and unauthorised erection of shed upto compound wall. Admittedly when the site was inspected on 4 th December, 2007 there was no ongoing construction and in absence of any record, it was not possible for the Junior Engineer, on mere visual inspection, to identify the original structure and the unauthorised extensions/additions.
39. The same Officer in his inspection report has recorded that in respect of the said construction there was no Section 354-A issued, whereas in his evidence has deposed that on 16 th August, 2007 he had visited the site and found unauthorized erection of brick pillars adjacent to the structure approximately 8 feet in height for which stop work notice was issued under Section 354-A of the MMC Act. He has further deposed that despite the stop work notice, the construction was continued and unauthorized extension to the existing structure was found which was noted in Inspection Report. As the panchnama or the notice under Section 354-A is not addressed to the Plaintiff and the same refers to construction of erection of brick pillars adjacent to the structure, DW-2's deposition that the ongoing work of 16 th August, 2007 was continued and unauthorised extension was constructed by the Plaintiff has no substance.
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40. In the cross examination, DW-2, Corporation officer, has deposed that as per the procedure after receiving complaint of illegal construction the site is visited and permission is asked for and if no permission is shown measurement of unauthorized work is taken and stop work notice is issued. As the site was visited on 16 th August, 2007 pursuant to the complaint by Defendant No 2, if we look at the complaints, Defendant No 2 had addressed various complaints to the Corporation dated 12th January, 2007 Exhibit-60, 22nd February, 2007- Exhibit-61, 20th July, 2007 Exhibit-62 and 24th July, 2007 Exhibit 63. The complaint dated 12th January, 2007-Exhibit-60 makes reference to the past complaints dated 11th September 2003, 19th November 2003, 16th September, 2004 and 28th September, 2004 which were all enclosed to the said complaints but are not produced on record at least before this Court. The complaint of 12th January, 2007 states that the Plaintiff has illegally added to the structure and extended the same beyond legal limits. It further states that she has illegally added height to the premises and illegally encroached in backside gully using permanent material like brick, stone and A. C. roof.
41. In the complaint dated 20 th July, 2007- Exhibit 62, the Defendant No. 2 has stated that illegal construction and addition of entire two rooms and toilet structure and also large portion of open compound is done by putting A.C. sheet roof and T.W. Posts. The Shubham Talle 29 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc complaints when perused makes it evident that it is Defendant No 2's complaint that on 20th July, 2007, the entire two rooms and toilet structure as well as the large portion of the open compound had been already constructed by putting AC sheet roof and T.W. Posts. Surprisingly, the Corporation's officer during his visit on 16 th August, 2007 does not notice the already completed additions of rooms and enclosure of the open compound and only noticed the construction of two pillars adjacent to the structure. This very officer, when visits on 4 th December, 2007 notices the alleged extensions/additions/alterations, without any record being produced by any person and puts up inspection remark for issuance of Section 351 notice. It is thus evident that Section 354-A was issued in order to pave way for issuing further notice under Section 351 of the MMC Act. When the complaint itself discloses that the entire construction was over in July-2007 there is no question of any ongoing work on 16 th August, 2007 for which notice under Section 354-A could be issued. The very foundation for issuance of Section 351 notice is doubtful.
42. The notice structure is described as "unauthorized extension to existing structure by side BM walls & AC sheet roof admeasuring 8.3x19.50, 10.6"x6.0"and 4.6"x11.3" and unauthorized erection of shed abutting structure upto compound wall admeasuring 5.00"x19.6" and 30.00" x (10.00"+5.00") average width. The notice under Section 351 Shubham Talle 30 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc proceeds on the basis of rough sketch annexed to the inspection report without calling for the sanctioned plan or any assessment remarks to verify whether the structure is in existence prior to the datum line or is authorised. What is interesting to note is the sketch on the right hand side of the notice which shows the shaded portion as an extension while retaining the unshaded portion as the original room, is based on the inspection remark of the Junior Engineer, which is itself unacceptable.
43. The Plaintiff who is a tenant would not be in possession of relevant property documents and the Defendants have failed to produce the best evidence of sanctioned plans and assessment remarks which are in their possession. The production of sanctioned plans and assessment records would have lend credence to the Section 351 notice and deliberate withholding of the evidence by the Defendants creates a doubt about the very foundation of the impugned notice that the Plaintiff had carried out unauthorised addition/alteration in the year 2006-2007. An adverse inference is required to be drawn that the sanctioned plans and/or the assessment remarks would show either authorisation or existence of the structure prior to datum line.
44. The Trial Court, while dismissing the suit, has relied upon the city survey plan to arrive at a finding that there was unauthorised Shubham Talle 31 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc construction carried out by the Plaintiff. There are two City Survey Maps produced by DW-1 landlord first is of the year 2006 based on measurements carried out on 13th January, 2006 and the second is of the year 2009 based on measurements carried out on 1st January, 2009. The City Survey Map of the year 2006 does not show any construction in red ink, whereas the map of 2009 shows additional construction in red ink. The Trial Court has relied heavily on the map of the year 2009- Exh 58 to arrive at a finding that there is extended construction abutting the suit premises shown in red ink on the map. The fallacy of the said finding is that it is the Plaintiff's case that she was inducted as tenant in the suit premises admeasuring 775 to 800 square feet in the year 1984 and the suit premises is in the same position. Therefore the map of 2009 showing additional construction cannot support the finding that the additions were not in existence when the Plaintiff was put in possession in the year 1984.
45. To salvage the finding of Trial Court, Mr. Thorat would submit that the city survey maps of the year 2006 and 2009 when compared would show the variation. This argument, when tested by considering the various documents produced on record fails. DW-1 has produced Rule Card , Agreement for Sale dated 30th April, 1996 and the Deed of Conveyance dated 12th May, 2006. To the Deed of Conveyance is annexed copy of City Survey Map furnished to the Defendant No 2 on Shubham Talle 32 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc 25th April, 2006 extract from the revision record no 28. The copy of the map, which has been scanned by this Court for ease of reference, contains the following remark and note:
46. The stamped remark of the City Survey Office, when translated Shubham Talle 33 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc in English, reads that the copy denotes the situation at site at time of revision and the copy has been furnished as per the revision map and the map does not show the updated position at site and for updated position it is necessary to carry out measurements. Interestingly below the sketch, the note reads that the map for CTS No 1086/1086/1 to 8 does not show the construction in red ink. The note does not state that there is no red ink construction but states that red ink construction is not shown and there the distinction lies. Comparing this map with the Map at Exhibit 56, both maps are pertaining to the year 2006. The copy of first map was given to the Defendant No 2 on 25th April, 2006. The question is, if the measurements were carried out on 13 th January, 2006 as per Exhibit 56 and did not show unauthorised construction, there was no necessity of the remark and note in the copy supplied in April, 2006 that the updated position at site is not shown and that the construction in red ink is not shown.
47. Similarly, to the Agreement for Sale of the year 1996 which was appended to the Deed of Confirmation, there is copy of city survey map furnished to the Defendant No 2 upon his application dated 21 st June, 1995 and the copy was provided in the year 1995. The copy of the plan provided by the City Survey Office, scanned and reproduced below contains a note:
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48. The note, which is in marathi, when translated, reads that in the plan of CTS No 1086, the construction in red ink has not been shown. This means that even in the year 1995 also there was additional construction, however the plan does not show the red ink construction.
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49. The City Survey Map of 2006- Exhibit 56 appended to the Deed of Conveyance shows the construction identical to the construction in the map of 1995, but the map of 1995 contains a note that the red ink construction is not shown in the map, which is missing in map of 2006.
50. It is only in the city survey map of the year 2009 Exhibit 58 that the red ink construction is shown. Pertinently, the City Survey Officer was not examined and the maps were admitted in evidence as there was no objection raised by the Plaintiff. In event the City Survey Officer would have been examined, his evidence would have clarified the position. Upon considering the various City Survey Maps which are on record and discussed above, it is difficult to place reliance on Exhibit 56 and Exhibit 58 maps to arrive at a finding that the additional construction was carried out between 2006 and 2009.
51. The Trial Court has based its findings on map of 2009 to co- relate it with the the panchanama of 16th August, 2007. The Trial Court fell in error in not noticing that various complaints of Defendant No 2 stating that in July, 2007 itself the construction was complete. The Trial Court also failed to notice that the notice under Section 354-A was not issued to the Plaintiff and the admission in the Corporation's witness that the pillar was not touching the structure.
52. Although the burden was upon the Plaintiff to prove that the structure was tolerated or authorised, as evidence was led by all the Shubham Talle 36 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc parties, the issue of burden of proof pales in significance. Upon cumulative appreciation of evidence on record, on pre-ponderance of probabilities, it can be held that there was no construction carried out by the Plaintiff in the year 2006-2007 for which notice under Section 351 could be issued to the Plaintiff. Thus there was no foundation for issuance of notice under Section 351 of MMC Act.
53. The Defendant No 2 has taken advantage of the Property Card showing the area of 1086(4) and the list of tenants annexed to the agreement executed by the Defendant No. 2 with the erstwhile landlord to put up a case that the premises in respect of which the Plaintiff was tenant was admeasuring 17.8 sqr. Mtrs and attempted to show construction in the year 2006-2007 by lodging various complaints after the execution of Conveyance Deed in his favour in the year 2006. Pertinently he failed to adopt civil proceedings to stop the alleged construction in the year 2006-2007.
54. The primary requirement is that the noticee should have erected such building and executed such work or must be carrying out the work or such erection or construction. Though there is notice issued under Section 354-A the complaint which was filed by the Defendant No. 2 more than sufficiently establishes that in the January 2007 itself the alleged unauthorized additions of three rooms was complete and therefore the notice of Section 354-A which refers to erection of brick Shubham Talle 37 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc pillars does not establish that there was any work which was being constructed by the Plaintiff.
55. In the facts of the present case, where the Plaintiff is admittedly a tenant and claims to have been put in possession of the suit premises in the year 1984, the inquiry to be conducted by the Trial Court was whether the Plaintiff had commenced or carried out any work of the nature described in Section 351 notice. In each case the validity of Section 351 notice cannot be tested only on the ground whether the noticee proves that the notice structure is authorised or tolerated. It is also required to be seen whether there is any foundation for issuance of Section 351 notice if the noticee has not been shown to have carried out any addition/alteration. When tested, the notice under Section 351 is unsustainable and is liable to be quashed and set aside.
56. Point No (2) is accordingly answered in favour of the Plaintiff. AS TO POINT NO (3):
57. The Trial Court has held that the Plaintiff has challenged only the notice dated 27th December, 2007 and has not challenged the order dated 13th February, 2008 and therefore the Plaintiff is not entitled to grant of discretionary relief of injunction. Section 351 notice calls upon the Plaintiff to show cause as to why the notice structure should not be demolished. In response to the documents submitted by the Plaintiff, an order in form of communication dated 13th February, 2008 is Shubham Talle 38 of 40 ::: Uploaded on - 12/03/2025 ::: Downloaded on - 12/03/2025 22:33:23 ::: FA-1086-2022.doc addressed to the Plaintiff rejecting her documents and explanation. The communication itself states that the notice structure is liable to be demolished within seven days of receipt of the letter. There is sufficient pleading by the Plaintiff to grant the relief of injunction without specific prayer challenging the order/communication of 13 th February, 2008. In case of Bhagirath vs Ramprasad (2010) 6 Mah LJ 169, this Court has considered the power of Court to mould relief under Section 151 of CPC and held as under:
"The Court has power to mould relief which can be granted on the basis of pleadings and evidence before it. Section 151 of Code of Civil Procedure lays down the power of the Court to make such orders as may be necessary to meet the ends of justice. This also includes power to give appropriate relief in order to avoid multiplicity of litigations...."
58. Irrespective of whether there is a specific challenge to the communication/order of 13th February, 2008, the natural consequence of grant of prayer clause (a) would render the communication/order dated 13th February, 2008 sterile.
59. Point No (3) is accordingly answered.
60. In light of the above, following order is passed:
::ORDER::
(a) First Appeal stands allowed.
(b) The impugned judgment and order dated 5 th March, 2020 passed in L.C Suit No 327 of 2008 is quashed and set aside.
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(c) L. C. Suit No. 327 of 2008 is decreed in terms of prayer clauses (a), (b) and (c).
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