Bombay High Court
The Union Of India Thro. Secretary ... vs Madhukar Nana Shahane And Others on 5 October, 2021
Bench: V. V. Kankanwadi
919-sa-331-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
919 SECOND APPEAL NO.331 OF 2021
THE UNION OF INDIA THRO. SECRETARY MINISTRY OF DEFENCE
NEW DELHI AND ANOTHER
VERSUS
MADHUKAR NANA SHAHANE AND OTHERS
...
Advocate for Appellants : Mr. A. G. Talhar, Assistant Solicitor General
Advocate for Respondent Nos.1 and 2 : Mr. Yogesh Lagad h/f Mr. N. V.
Gaware
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 05.10.2021
ORDER :-
. Heard learned Advocate appearing for the appellants.
2. Learned Advocate Mr. Gaware for the respondent Nos.1 and 2 is
not present. Learned Advocate holding for him initially submitted that
the matter should be kept back and then when asked about him, he says
that due to personal difficulty, he is not present. In fact, in view of
Ashok Rangnath Magar Vs. Shrikant Govindrao Sangvikar, [2015
Mh.L.J. Online (S.C.) 140 :: (2015) 16 SCC 763], the respondents are
not required to be heard at the time of admission of the second appeal.
3. The appellants are the original defendants and the respondents
are the original plaintiffs. Original plaintiffs had filed Regular Civil Suit
919-sa-331-2021.odt
No.251 of 2000 for permanent injunction. The suit was entertained and
tried before the 3rd Joint Civil Judge Senior Division, Ahmednagar and it
was dismissed on 24.01.2008. The respondents - original plaintiffs filed
Regular Civil Appeal No.132 of 2008 before the learned Principal
District Judge, Ahmednagar. The said appeal came to be allowed by
judgment dated 22.07.2014 and the judgment and decree passed by the
learned Trial Judge was set aside. The defendants were directed not to
demolish the construction of room on the second floor of the suit
property on the basis of notice dated 15.05.2000. Hence, this second
appeal.
4. Learned Advocate for the appellants has pointed out that plaintiffs
had not proved that the said construction on the second floor was as per
the sanctioned plan. There was no dispute regarding the construction
made by the plaintiffs on the ground floor and the first floor. They had
sought permission from the defendants and accordingly, they had carried
out the construction, however, it was the contention of the defendants
that when the concerned officer i.e. Junior Engineer visited the house of
the plaintiffs, he found that there is illegal/unauthorised construction on
the second floor and, therefore, first notice was issued to the plaintiffs
on 11.05.2000 and the second notice was issued on 15.05.2000 thereby
asking the plaintiffs to demolish the said unauthorised construction.
919-sa-331-2021.odt
The said notice was sent under Section 185(2) of the Cantonments Act,
1924. The learned Trial Judge has correctly held that though plaintiffs
have proved their ownership over the suit property, they have not
proved that their construction on the second floor is legal and
authorised. The prayer for injunction was rightly refused. However, a
cryptic judgment has been passed by the learned Principal District
Judge, Ahmednagar. There was no proper appreciation of evidence and
there was no reason to deviate itself from the findings recorded by the
learned Lower Court. He submitted that the substantial questions of law
are arising in this case.
5. Perusal of the paperbook of the first Appellate Court, which is
made available would show that in the suit, the description of the
property has been given, however, it does not make specific mention
about the room on the second floor. It has been contended that the
plaintiffs had taken proper permission to make construction and
accordingly, the construction has been made. They have contended that
no new construction has been made. In the written statement,
defendant No.2 had specifically contended that there is no dispute
regarding the construction as per sanctioned plan on the ground floor
and the first floor. It was then stated that the specific dispute is in
respect of the construction made on the second floor. Accordingly, the
919-sa-331-2021.odt
issues have been framed by the learned Trial Judge. After taking into
consideration the evidence that is oral as well as documentary evidence,
the learned Trial Judge come to the conclusion that plaintiffs are the
owners of the suit property. It was further held that defendant No.2 has
proved that the plaintiffs have made construction on the second floor
illegally and unauthorisedly and, therefore, prayer of injunction was
refused. As against this, only two points were taken up for
determination by the learned Principal District Judge.
6. Perusal of the examination-in-chief of plaintiff would show that he
has produced only the notice, index of the sale deed, copy of Schedule-1
of Cantonment and the shop act license. In his cross-examination, it
appears that defendant No.2 had shown the sanctioned plan. He
admitted that the construction of ground floor and first floor has been
completed in the year 1995. According to the learned Trial Judge, the
said sanctioned plan is to the extent of ground floor and first floor only.
The plaintiff's witness has denied that the construction on the second
floor has been made around 2002 without taking permission from the
Cantonment Board. However, he admitted the existence of the room on
the second floor. Thus, it is to be noted that when the existence of such
room on the second floor is admitted by the plaintiffs, then it is required
to be seen as to whether plaintiffs had sought permission to construct
919-sa-331-2021.odt
the same and whether the said construction is authorised or
unauthorised.
7. Since the Courts below have given contrary findings and for the
aforesaid reasons, substantial questions of law as contemplated under
Section 100 of the Code of Civil Procedure are arising in this case
requiring admission of the second appeal. Accordingly, second appeal
stands admitted. Following are the substantial questions of law :-
I) Whether the construction of the room on the second floor
of the suit property is legal and authorised?
II) Whether the action taken by defendant No.2 in giving
direction to the plaintiffs to demolish the said structure is lawful?
III) Whether the plaintiffs were entitled to get injunction as
prayed?
IV) Whether the first Appellate Court was justified in reversing
the findings given by the Trial Court and whether the said
judgment is adhering to the requirements enumerated in Santosh
Hazari Vs. Purushottam Tiwari (Deceased) By Lrs., [(2001) 3
SCC 179] ?
919-sa-331-2021.odt
8. Issue notice to the respondents after admission. Learned
Advocate Mr. Yogesh Lagad holding for learned Advocate Mr. Gaware
waives notice for respondent Nos.1 and 2. Notice of respondent No.3 is
made returnable on 24.01.2022.
9. Call record and proceedings.
[SMT. VIBHA KANKANWADI, J.]
scm
