JUDGMENT :

Rajesh H. Shukla, J.

The present First appeal has been filed by the appellant-Ahmedabad Municipal Corporation against the respondents nos. 1 to 6, who are the heirs of the deceased viz., Haribhai Koshti, who died as a result of collapsed of the wall at Kamdar Kalyan Medan run by the Gujarat Welfare Board. The respondents nos.1 to 6-original plaintiffs filed Civil Suit No. 3674/1989 in City Civil & Sessions Court, Ahmedabad. On appreciating the material and evidence on record and after considering the rival submissions, the Learned Judge, City Civil Court, Ahmedabad dismissed the Suit qua respondent no.7-original defendant no.2 and allowed qua appellant-Corporation vide Judgment & Order dated 16.01.1995. It is this judgment and order, which has been assailed in the present First Appeal by the appellant-Corporation on the grounds stated in the memo of appeal inter alia that the judgment and order passed by the Ld. Civil Court is contrary to law and evidence on record. It is specifically contended that the Court below failed to appreciate that there was absolutely no evidence showing that there was any negligence and carelessness on the part of the appellant. It has been contended that place was meant for general public to pass through and it was not meant for anybody to sit there for doing business and, therefore, the deceased was unauthorisedly occupying the said place carrying on business and, therefore, he cannot claim any compensation as he is in the nature of trespasser. It is also contended that the appellant-Corporation had given building along with playground on rent to the defendant no.2-respondent no.7 herein being Gujarat Welfare Board and, therefore, the Court below has failed to appreciate that the maintenance of compound wall, which was in possession of the respondent no.7-original defendant no.2 as a tent, was required to be done by the respondent no.7. He, therefore, contended that the Court below has failed to appreciate the standard of conduct accepted of a reasonable man and has failed to appreciate the material and evidence. It is also contended that the Court below has also erred in accepting earning of Rs.3,000/- per month, otherwise, he would have been income tax payer, however, no such evidence is produced.

2. Heard learned counsel, Mr. Dipak Raval appearing for the Anand Advocates for the appellant-Ahmedabad Municipal Corporation and learned counsel, Ms. Megha Jani for the respondent nos.1 to 6. None for the respondent no.7-original defendant no.2.

3. Learned counsel, Mr. Raval has referred to the facts of the case and submitted that the premises was owned by the appellant-original defendant no.1, which was leased out to the respondent no.7 herein-Gujarat Welfare Board, Kalyan Kendra, Outside Raipur Darwaja, Ahmedabad. He has referred to the issues, which have been framed at Exh.16 as well as evidence on record and submitted that the Court below has failed to consider the aspect of negligence as well as conduct of the deceased. It was submitted that the premises in question was leased out to the respondent no.7 and, therefore, it was the obligation of the respondent no.7 to maintain the said wall. He further submitted that in any case, the deceased, Hirabhai was doing business with small cabin on road side near the wall and thereby he was the encroacher or unauthorized occupant and he was doing such work on public street, therefore, no legal duty to exercise any care was cast upon the appellant-Corporation. It was the deceased, who himself was liable for carrying on such business sitting besides the wall, which was in dilapidated condition to his knowledge. Learned counsel, Mr.Raval has also referred to the conduct of the deceased and submitted that it is not as per the standard of conduct expected of a reasonable man in such a circumstances. Learned counsel, Mr. Raval has therefore strenuously submitted that unless there is legal duty or obligation cast as it is a case of nonfeasance, no amount c