SITARAM SAKHARAM KELUSKAR Vs. DAYARAM GULZARILAL

JUDGEMENT

(1.) The appeal is preferred against judgment and order dated 22.12.2000 passed by learned First Additional Principal Judge, Bombay City Civil Court, Mumbai, in S.C.Suit No.5167 of 1989 whereby the suit was dismissed with costs.

(2.) The appellant (original plaintiff) had prayed for mandatory injunction against respondent to the effect that defendant should be ordered to remove the construction of drainage allegedly on the door step of the plaintiff and affecting the entrance of the plaintiff with damages claimed in the sum of Rs.25,000/ and also mandatory injunction in terms that dangerous portion of the first floor falling on the plaintiff's room be removed as unauthorized and illegal construction. According to plaintiff (appellant) he is tenant occupying Room No.24, situated at 9, Punjabi Chawl, Jawahar Nagar, Khar (E), Mumbai, while defendant is owner of the said chawl. When tenant wanted to carry out certain repairs with the permission of Municipal authorities, landlord had objected and he had filed civil Suit No.811 of 1986 in the court of Small Causes for injunction, while in the Bombay City Civil Court, suit was filed against Bombay Municipal Corporation and tenant, in which tenant had to file writ petition in the High court.

(3.) It appears that learned trial Judge considered the evidence led before the court including evidence of the Ward Officer of the Municipal Corporation examined as PW7, as also Sanitary Inspector from the Municipal Corporation, examined as PW6, regarding the alleged unauthorized construction and nuisance due to construction of drainage. Learned trial Judge also considered the pleadings in the plaint so as to observe that the plaintiff cannot be allowed to travel beyond the pleadings in the plaint. He pleaded that construction of bungalow and the drainage line was without permission of the Municipal Corporation, was considered in details with reference to the evidence led before the trial court. Learned Judge on the basis of evidence led could not find that the alleged construction of bungalow and the drainage was without permission from the Municipal Corporation. On the other hand, from the evidence led before the court, learned Judge noted portion of deposition in the evidence of Ward Officer. In the cross examination, in which the Ward Officer agreed that necessary permission for the drainage line of the defendant was granted to the defendant. It was also found that regarding the alleged construction of bungalow, no illegality was detected by Municipal Corporation, and regarding the drainage line concerned, it had necessary permission from the Municipal Corporation. Unfortunately, letters which were communication by the plaintiff with the Municipal Corporation were not proved by the plaintiff and learned Judge rightly held that contents of the letters were not proved and could not be read in evidence.