1. A very narrow point of determination arises in this First Appeal. The Appellants (original Plaintiffs) sued the Respondent s (Original Defendant s) in the Bombay City Civil Court, challenging the Notice under Section 351 of the Bombay Municipal Corporation Act, issued on 8.6.2001 for construction of ground plus first floor structure of the Appellants.

2. The Appellants replied to the said notice stating that the premises consisted of ground floor with a mezzanine floor and a room above it on the first floor admeasuring 300 sq. feet built up area in the chawl known as Gokuldas Raghavji Chawl. The Appellants relied upon a city survey plan. The city survey plan showed the entire chawl, including the Appellants' structure. All the rooms in the chawl were shown to be ground plus first floors. The Appellants' room was shown to be only a ground floor construction. Only the Appellants' room did not show any existence of the first floor.

3. The DMC considered the Appellants' reply and passed an order on 2.7.2001 stating that it was established that the mezzanine floor and the first floor were unauthorized and not reflected in the city survey plan and directing the Appellants to remove the notice structure within 15 days. The notice structure is the ground floor as also the first floor premises. The Appellants, therefore, sued challenging the notice and the DMC's order.

4. The 1st Plaintiff claimed in the Suit that she was a tenant of the room on the ground floor and the mezzanine floor therein and a room on the first floor exactly above the said ground floor room. She had a single rent receipt in respect of both the rooms. The averment in Para- 5 of the Plaint is, inter alia, that there is a staircase to go to the first floor of the said chawl situated by the side of the suit premises.

5. The 1st Plaintiff claimed to have carried out certain repairs and renovations to the premises tenanted by her. She had mentioned about such repairs through the Affidavit filed by her son, who was a Constituted Attorney in the Small Cause Court Suit. In that Affidavit, permission of the landlady to carry out extension to the existing premises upon receiving consideration is mentioned.

6. In the Suit filed in the City Civil Court itself, the landlady as well as her son have been examined. The evidence of the son of the landlady viz. Suryakant, who was her Constituted Attorney, showed that in 1993 without the consent of the landlady, the 1st Plaintiff's husband and sons constructed the mezzanine floor inside the premises and also the first floor above the premises. The landlady, who was Defendant No.4 in the Suit, examined herself. She deposed that the suit property was purchased by her in 1952, prior to which the premises tenanted to the husband of the 1st Appellant had a ground floor with mezzanine floor with a height of 17 feet. She further deposed that the 1st Plaintiff's husband carried out repairs by modifying conical roof of the structure and making it straight without any curve in the year 1992- 93.

7. Defendant No.3, who is the developer, has examined himself and produced the photographs of the suit structure which are marked D-2 in the evidence. The photographs show a separate ground floor and first floor of a completely different material than the rest of the structure of the chawl consisting of four other rooms with a first floor.

8. In support of the 1st Appellant's contention that the entire structure has been in existence prior to the datum line and, therefore, is tolerable, she has stated in Para- 12 of her examination- in- chief that neither her husband nor she had made any additions or alterations in the suit premises originally let out prior to 1950 to her husband. This must be considered along with the Affidavit filed by her son in the Small Cause Court in which he has mentioned about carrying out extension to the existing premises of himself as well as other tenant s.

9. Since the impugned judgment and order has to