1 S.A.NO 420/2008. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. SECOND APPEAL NO. 420 OF 2008. WITH CIVIL APPLICATION NO.7298 OF 2008. 1. Ulhas S/o Gamanlal Jain,Age 38 years, occup. Business R/o Azad Chowk, Chopda,Dist. Jalgaon. ..Appellant. V E R S U S 1 Suryakant S/o Shamlal Agrawal, Age 43 years, Occup. Agril.,R/o Chopda, Dist. Jalgaon. 2. Pramodlal S/o Gamanlal Jain,Age 42 years, occup. Service R/o C/oB.D.Deshpande’s Wada Rath Galli Chalisgaon Dist. Jalgaon. 3. Chief Officer, Administrator, Municipal Council Chopda, District Jalgaon. Respondents ------------------------------------------ Mr.B. R. Warma,Advocate for appellant Mr.R. R. Mantri Advocate for respondents. ------------------------------------------ 2 CORAM : A.V. NIRGUDE, J DATE : 2nd September,2009. PER COURT : 1. The appellant challenges concurrent finding of fact recorded by the Courts below viz : the respondent no.1/plaintiff had proved that southern wall of his house is not common wall between the houses of the respondent and the appellant. This finding is recorded in a suit, where the respondent No.1 sought to prevent the appellant from constructing upper floors adjoining to first floor of his house. The respondent no.1 has multi-storied house situated on southern side of the single storied house purchased by the appellant. These houses initially belonged to one party and are in existence since 80 years. Since beginning the respondent no.1’s house has six windows on the first and second floor opening on the southern side. The appellant purchased the single storied house and used it for some time. Recently, a few months prior to filing of this suit, he proposed to demolish the single storied structure and sought permission to construct a new building. The Municipal Council permitted him to construct a single storied building in place of the old structure. Seeing this development, the respondent No. 1/plaintiff apprehended that the appellant would construct a taller building, next to his building and thereby obstruct the windows on first and second floor. 3 S.A.NO 420/2008. He gave a legal notice and then filed suit for injunction. Despite of an order of temporary injunction passed in this suit, the appellant continued construction of upper floors. It is shown that the appellant did not secure construction permission for first floor of his building. The respondent/plaintiff then amending the plaint sought mandatory injunction for removal of first floor structure, which obstructed the windows. 2. In defence, the appellant asserted that wall of respondent no.1’s house next to his house was common, so the respondent no.1 could not have easement right in respect of this wall and windows opened in it. Both the Courts below examined this factual aspect and held against the appellant. Number of points were raised by the appellant to prove that the wall of the respondent no.1’s house was common,but the Courts below rejected each and every defence. 3. The learned Advocate Mr.B.R.Warma appearing for appellant categorically stated that the respondent No.1 in his deposition gave admission about commonness of the disputed wall. When I perused the original deposition, I realised that the learned advocate was not correct in making his submission. There is in fact no admission. Further, Mr. Warma took me through the depositions of the respondent’s witnesses and tried to show me certain portions, which according to him, meant admission and proof of circumstances showing commonness of the wall. But he could not convince me of his assertion. There are two aspects which Mr. Warma ignored. First was the court commissioner’s report, which went against the appellant's 4 case. The commissioner found on the spot a wall belonging to appellant standing next to the respondent no.1’s wall. Second aspect is about the appellant’s building construction permission a copy of which is on the record. This permission enjoined the appellant to construct an independent wall for his single story building. The Municipal Permission does not indicate that the appellant would construct his house taking support from the common wall between two. The findings of the courts below are based on cogent reasons. Therefore, there is no substance in the appeal, much less no substantial question of law arose in this case. The appeal stands dismissed. In view of this, Civil Application No.7298 of 2008 is disposed of. The cost of Rs.3000/- deposited by the appellant in the court, shall be handed over to respondents or his Advocate. ( A.V.NIRGUDE, J. ) MTK/SA420.08 ok