1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 175 /2008 (Shaikh Mustak Shaikh Shabbir Vs. Mohs. Jafar Shaikh Gani) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 23 rd JUNE, 2008. Heard Shri Saboo for the appellant, and Shri Motghare for the respondent. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration and for removal of encroachment and damages. According to the plaintiff, the defendant had purchased one open plot in the year 1986 and constructed a cattle shed thereon. It is further pleaded that he purchased the adjoining house from one Daulat Khan in the year 1995. According to the plaintiff, in view of the construction of the cattle shed, there was no approach way to the plaintiff to repair the east-west wall of his house The plaintiff, therefore, earlier instituted a suit for declaration and injunction against the defendant, that he had a right to enter through the cattle shed of the defendant, to repair the wall of his house. That suit was decreed 2 in favour of the plaintiff and the plaintiff was permitted to repair the east-west wall of his house by entering through the cattle shed of the defendant. Thereafter, the plaintiff filed the present suit. According to the plaintiff, since the encroachment was made by the defendant by constructing a cattle shed on the passage admeasuring 3' X 32', it was necessary to direct the defendant to remove the encroachment. The defendant denied the claim of the plaintiff, and pleaded that the plaintiff's suit was false and was liable to be dismissed. It is necessary to note that the defendant had purchased the plot in the year 1986 and had constructed a cattle shed thereon. The plaintiff had purchased the adjoining house in the year 1995. In the earlier suit, the plaintiff did not seek the relief of removal of encroachment, though the encroachment was existing even at the time when the plaintiff had filed the earlier suit for declaration and injunction. It is also pertinent to note that both the Courts have recorded clear finding of fact that the plaintiff had failed to prove that the defendant had encroached upon the suit property unlawfully. The finding recorded by both the Courts is a pure finding of fact which does not give rise to any substantial question of law. Even otherwise, the 3 subsequent suit was not maintainable as the plaintiff ought to have sought the relief of removal of encroachment in the earlier suit itself as the construction of the cattle shed was made even before the plaintiff purchased the suit property in the year 1995. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP