SHRI. GANU DHONDU KHOPKAR (DECEASED) THR. LRSversusSHRI. ASHOK PRABHAKAR MASTAKAR AND ANR

                                                                           17-CRA-132-2018.doc




        varsha                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CIVIL APPELLATE JURISDICTION
                                    CIVIL REVISION APPLICATION NO. 132 OF 2018


                              Shri Ganu Dhondu Khopkar(deceased) thr. … Applicants
                              Lrs
                                         vs.
                              Shri Ashok Prabhakar Mastakar and Anr         … Respondents

                              Mr. Sameer Tendulkar a/w. Mr. Akshay Nawar for Applicants
                              Mr. Prasad M. Gaonkar for Respondent No.1.


                                                        CORAM : GAURI GODSE, J.
                                                        DATED : 23rd SEPTEMBER 2026


                              ORDER:

                              1.   This civil revision application is filed by the original

                              defendant(tenant) to challenge the judgment and decree for

                              eviction passed by the appeal court on the ground of

                              construction of a permanent structure without permission of the

                              landlord. The suit was filed on the ground of unauthorised

                              permanent construction carried out without permission and

                              default. The trial court had decreed the suit on the ground of
           Digitally signed
                              default. In the appeal preferred by the defendant, the landlord
VARSHA by  VARSHA
        VIJAY
VIJAY   RAJGURU

RAJGURU Date:
        2026.09.24                                       Page no. 1 of 5
           18:57:55 +0530
                                             17-CRA-132-2018.doc



had filed a cross-objection seeking a decree on the ground of

permanent construction. The appeal court has reversed the

decree on the ground of default; however, has allowed the

cross-objection and passed a decree on the ground of

permanent construction without permission of the landlord.

2.    Learned counsel for the applicants submits that the

erstwhile landlord had granted permission in 1993. The present

plaintiff is an auction purchaser who purchased the property in

1997. Since, the construction was carried out as per the

permission granted by the erstwhile landlord, the decree on the

ground of permanent construction would not be sustainable.

3.    Learned counsel for the applicants relies upon a letter

dated 10th April 1993, issued to the defendant’s father for repair

permission. He also relies upon the findings recorded by the

trial court holding that the construction was not unauthorised as

the corporation had not taken any action of demolition despite

issuing notice under Section 351 of the Mumbai Municipal

Corporation Act, 1888. He submits that as per the corporation’s

policy, all the constructions carried out prior to 1997 were


                           Page no. 2 of 5
                                             17-CRA-132-2018.doc



protected; hence, no action was taken. He therefore submits

that the decree for eviction on the ground of unauthorised

construction without permission would not be sustainable.

Hence, according to the learned counsel for the applicants, the

impugned judgment and decree would warrant an interference

by this court.

4.    Learned counsel for the respondent supports the

impugned decree. He submits that the letter relied upon by the

applicants was not admitted in evidence. He submits that the

inaction on the part of the corporation in not demolishing the

premises or any policy protecting unauthorised construction

would be irrelevant for deciding whether the permanent

constructions are carried out without the landlord's permission.

He submits that even otherwise the trial court’s findings relied

upon by the applicants stating that the corporation had granted

permission to the defendant to carry out repairs are rightly

reversed by the appeal court, as the permission was not

produced on record.

5.    I have perused the papers of the application. The


                           Page no. 3 of 5
                                              17-CRA-132-2018.doc



landlord has alleged that the defendant has carried out

construction of a mezzanine floor without seeking any

permission. The copy of the written permission relied upon by

the applicants is not admitted in evidence. Hence, the appeal

court has refused to accept the same as any valid proof of a

written consent of the erstwhile landlord for carrying out

construction. Even otherwise, the letter dated 10 th April 1993,

relied upon by the applicants, is for repair permission. The said

letter nowhere refers to any permission for carrying out

construction of the mezzanine floor. Hence, the appeal court

has rightly refused to accept it as a valid permission of the

erstwhile landlord for carrying out construction.

6.    The regularisation of the unauthorised construction, as

held by the trial court, is reversed by the appeal court by

holding that the same would not be of any relevance if the

construction is proved to have been carried out without the

permission of the landlord. The construction carried out by the

defendant is therefore held as unauthorized construction of

permanent nature without the written consent of the landlord. In

the absence of any evidence to show that the construction was
                            Page no. 4 of 5
                                              17-CRA-132-2018.doc



with consent, the findings recorded by the appeal court would

not warrant any interference. I do not find any jurisdictional or

any other manifest error in the reasons recorded in the

impugned judgment warranting any interference in the exercise

of the power under Section 115 of the Civil Procedure Code.

7.    The civil revision application is devoid of any merit. The

civil revision application is therefore dismissed.



                                              (GAURI GODSE, J.)




                            Page no. 5 of 5