Advocates:
['SHRI P G KARANDE', 'GOVT PLEADER', '', 'SMT SUDHA SREEDHARAN']

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IN THE HIGH COURT OF JUDICATURE

AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL (ST) NO.9874 OF 2007

WITH

CIVIL APPLICATION NO. 2453 OF 2007

Shashikant Nirgudkar

...Appellant

Vs.

MHADA & Anr.

...Respondents

Mr.P.G.Karande , Advocate for Appellant

Mr. S.N. Gawade, A.G.P for Respondent No.1.

Mrs. Sudha Shreedharan, Advocate for Respondent No.2

CORAM: SMT.ROSHAN DALVI,J.

DATED: 19TH JUNE, 2007

P.C.

1. The above Civil Application is for continuation of the

interim stay which was initially granted by the learned trial

Court – the Bombay City Civil and Sessions Court during the

pendency of the suit and which was continued since.

2. Advocates of the parties are heard at length. The copies

of the evidence as well as the documents relied upon by the

parties are produced.

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3. The Appellant's suit has been dismissed, from which order

this Appeal is filed. The Appellant has applied for mandatory

reliefs in the suit. He has been granted a prohibitory

injunction which has continued till today. Under the

circumstances and since all the records have been placed

before the Court, the Appeal is disposed off at the stage of

admission itself.

4. The case of the Appellant is that he has been in

possession of the Suit premises and the suit premises has

been wrongfully demolished by MHADA without giving him

notice and a right of hearing and hence, the MHADA, failing

which he, should be directed to reconstruct the suit

premises.

5. The suit premises is between two premises of other

parties. To understand the Appellant's case of what is the

suit premises for which he is claiming his rights, the

Appellant as well as the RespondentNo.2 were directed to

produce photographs of such premises. The photographs

are seen.

6. The suit premises is not a premises. It is an open land

between two premises which has a tarpolene to serve as a

roof. The two sides of the premises are formed by the walls

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of the two adjacent premises. Two other sides are open. The

premises is not enclosed within 4 walls and is not covered by

a roof of any permanent nature. The photographs show two

sides of the premises completely open. The two sides which

are closed are, as aforesaid, by the walls of the two adjoining

structures.

7. The land below the premises claimed by the Plaintiff

belongs to MHADA, Respondent No.1.(Defendant No.1 in the

Suit).

8. The Respondent No.2 has been leased the land on which

the Plaintiff claims to have a premises by putting up a

tarpolene over wooden posts. There are certain documents

executed by and between MHADA , Respondent No.1 and

Respondent No.2.

9. The main aspect to be considered is the extent of the

Appellant's right in suit premises. When the Appellant came

to be in the possession of the premises and through whom is

not stated. Lawful entry into the premises is, therefore, not

shown. The Appellant may be taken to be in settled position

if he shows his possession settled prior to the filing of the

suit to claim his rights to the suit premises.

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10. It is the case of the Appellant/Plaintiff himself that his

premises were demolished at least on three occasions 1998,

2000 and 2001 and, therefore, some of the documents have

been destroyed. No copies of the documents are produced.

The Appellant's Advocate stated across the Bar that he had

some electricity bills which were destroyed. No further

electricity bills were produced. Even if some were destroyed,

further bills could have been shown. None of such

documents have