Dharyashil Dattajirao Khanvilkar v. Rajendrakumar Alias Atikant Adiraj Patil

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 893 OF 2012 Dharyashil Dattajirao Khanvilkar Age 81, occ. Nil, resident of 521, E Ward, Shahupuri, Near Railway Gate No. 1, Kolhapur Ramchandra alias Ramrao Dattajirao Khanvilkar, age : 74, Shivajirao Krishnarao Khanvilkar (deceased) through legal heir 3A Smt. Pushpamala Shivajirao Khanvilkar Age 78, Occ. Household, r/o 521, E Ward, Shahupuri, Near Railway Gate No. 1 Kolhapur 3B Shri Udaysingh Shivajirao Khanvilkar Age 50, Occ. Business r/o As above 3C Smt. Sujata Hemant Salvi Age : 48, Occ. Household C/o. Hemant M. Salvi, California Beverages Ltd. Plot No. 1644 Malambi Road, Lusaka, Zambia, Africa 3D Smt. Pranita Ajay Jadhav Age - 44, Occ. Household c/o Ajay Jadhav, 505, Oriental Ave, Mamaroneck, New York - 10543, U.S.A.

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Smt. Malati Madhavrao Khanvilkar Occ. Nil, r/o 521, E-Ward, Shahupuri Near Railway Gate No 1, Kolhapur Khanvilkar Commercial Complex Condominium, Society established under Maharashtra Apartment Ownership Act (for appellants Nos 1 to 5 Power of Attorney holder Udaysing Shivajirao Khanvilkar (Except 3A) ....Appellants

Versus

Rajendrakumar alias Atikant Adiraj Patil, age 62, Occ. Business & Agri, r/o Shop No. 4, Khanvilkar Commercial Complex, 521 E Ward, Shahupuri, Near Railway Gate No. 1, Kolhapur Sou, Dhanshri alias Rekha Gulabrao Sonpethkar, age : 56, Occ. Household & Business, r/o. 462/3, B, Jadhavwadi, Market Yard, Kolhapur Kolhapur Municipal Corporation Through Commissioner, Kolhapur Municipal Corporation Office Bhausingji Road, Kolhapur ....Respondents Mr Vijay D Patil for the appellant.

Mr Ajay D. Magadum i/b. Mr.S. S. Patwardhan for respondent no. 3. CORAM :

R. K. DESHPANDE, J.

DATE :

3rd AUGUST, 2015.

ORAL JUDGEMENT :

1.

In the Regular Civil Suit no. 81 of 2002, the trial Court has passed a decree on 29/8/2011 directing the defendant to construct the 2/4

toilet of 8" x 5" measurement highlighted by letter "L" in the map on the southern side. The Court has passed a decree directing the defendant to remove the sliding doors to the south of gate No.1 and also to remove other doors on western and southern side. The decree is confirmed in appeal by the lower appellate Court. Hence, the defendant is against the concurrent findings of facts before this Court. 2.

After hearing the learned counsel appearing for the parties, the decree passed by the trial Court can be slightly modified and made subject to the grant of permission by the local authorities for construction of toilets at the place. The defendant shall ask for permission within 15 days from the date of receipt of copy of this judgment to construct toilet in terms of the decree passed by the trial Court and that application shall be considered by the Kolhapur Municipal Corporation within a period of 3 months from the date of receipt of such application. If the sanction is granted, the decree shall become executable. The Corporation shall, however, not get influenced by the fact that after demolition of toilet, the defendant has carried out construction somewhere else, utilizing the FSI. In such case, the Corporation may proceed to demolish some other portion, so as to bring the building within the limit of FSI.

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3.

Similarly, defendant shall be at liberty to apply to the Corporation for regularisation of the openings which shall also be considered within a period of 3 months from the date of such application, in accordance with law.

4.

With these observations, the second appeal is dismissed. (R. K. DESHPANDE, J.) 4/4 Rajeshwari