1. This appeal is preferred against dismissal of the L.C. Suit No. 5756 of 2000 vide Judgment and order dated 06.05.2005 by the City Civil Court, Mumbai.

2. Facts of the appeal can be stated, in brief, as follows:

The appellant claims that he was residing along with his family in Room No.227/6 in the compound of Shanti Co-operative Housing Society Ltd., Mogul Lane, Mahim, Mumbai - 400 016. According to him, the said room was made of GI Sheet wall and GI sheet roof and was admeasuring about 25' x 9'6". It was situated in the compound of Shanti Co-operative Housing Society. He came into possession of the said room while he was residing along with one Budhram Arjun Singh, who has constructed the said room, much prior to 1960, even before the building of Shanti Co-operative Housing Society came into existence. According to the appellant, there were in all six rooms of the same measurement and same dimension in the compound of Shanti Co-operative Housing Society, including his room.

3. It is further case of the appellant that in the year 1975, as the Budhram, with whom he was residing, decided to go to his native place permanently, he sold the said room to the appellant and executed the payment receipt dated 20.01.1975 for the amount of Rs.2000/-. It is, thus, case of the appellant that while he was in peaceful possession of the said room, his first daughter was born while he was staying there with Budhram, since much prior to the purchase of the said room. He was also having Ration Card and Identity Card on the address of the said room.

4. In these facts and situation, the appellant received the notice from respondent-Municipal Corporation in the month of April, 1999, specifically on 12.04.1999 under Section 351 of the MMC Act informing him that he has carried out some unauthorized construction of hut with GI Sheet wall and GI sheet roof, taking advantage of the compound wall of the society and hence he should show sufficient cause to prove the legality and validity of the said structure. The appellant, therefore, approached the Trial Court seeking necessary reliefs of declaration and injunction.

5. During pendency of the suit, the appellant received another notice dated 05.11.2004 from the Municipal Corporation, issued under Section 488 of the MMC Act calling upon demolition of the said structure. Hence, the appellant was constrained to amend his suit and to seek necessary consequential reliefs that the said notice under Section 488 of the MMC Act was bad in law and the respondent-Municipal Corporation be restrained from acting in pursuance of the said notice. However before the order of injunction could be passed by the Trial Court, respondent-Municipal Corporation demolished the suit room, evicting him therefrom. The appellant has, therefore, amended the plaint and sought the relief of mandatory injunction directing the respondent-Municipal Corporation to forthwith reconstruct the suit room which they have demolished illegally and unauthorizedly.

6. This suit came to be resisted by the Municipal Corporation contending, inter alia, that the construction of the suit room was illegal, unauthorized and as a result thereof, the notice under Section 351 of the MMC Act dated 12.04.1999 was issued to the appellant. As the appellant failed to prove the legality and validity of the suit structure, despite an opportunity of hearing being given to him, the requisite order was passed and thereafter the necessary action of demolition of the suit room was taken against the appellant. It was denied that the suit structure was in existence since prior to 1960 or before the building of Shanti Co-operative Housing Society was constructed. It was also denied that the suit structure was in existence since prior to datum line of 17.04.1964. According to the Municipal Corporation, out of the six structures, only three structures were found to be in existence, since prior to datum line and they were allowed to be retained. As the entire action was