1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 202 OF 2006 Asaram s/o Motiram Deshmukh .. APPELLANT VERSUS Bajirao s/o Dajisaheb Tour & others .. RESPONDENTS Shri S.B. Bhapkar, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 11 th August, 2009. PER COURT : 1 This is an appeal by original defendant raising exception to the judgment and decree passed in appeal being Regular Civil Appeal no. 158/2001 thereby modifying the judgment and decree passed in Regular Civil Suit no. 181/1995. 2 Suit was presented by respondents / original plaintiffs claiming injunction in respect of house no. 149 more specifically described in the plaint. Defendant is the adjoining owner of the house property. Dispute 2 pertains to certain open space situate on the eastern side wherein some dilapidated constructed portion exists. Plaintiffs claim the suit property including the dilapidated construction in the open space whereas defendant has controverted the contentions raised by the plaintiffs. According to the defendant, plaintiffs have not established their case in respect of title over the property described in the plaint. 3 Trial court granted decree of injunction in favour of the plaintiffs in respect of the house property bearing no. 141. On consideration appeal presented by the defendant, the first appellate court although dismissed the appeal, however has clamped restrain order in respect of the property more specifically described in sketch at exh. 41 which would be treated as part and parcel of the decree. The portion specifically earmarked in the Commissioner’s report comprising of open space wherein certain dilapidated construction exists remains the matter of dispute in between parties. 4 While impeaching the correctness of decree passed by the first appellate court, learned counsel for the appellant has vehemently contended that it is not permissible for the first appellate court to place 3 reliance on court commissioner’s report and direct modification in the decree passed by the trial court. According to him in the absence of specific pleadings such modification is not permissible. 5 I have perused the plaint as well as written statement presented by the defendant. I have also perused the judgments recorded by both the courts below. The court below, appointed commissioner to inspect the property and to inform details in respect of the existing structure and other ancillary matters. The court commissioner has inspected both the properties; properties claimed by plaintiff as well as defendant and has reported the court that on the eastern portion of the suit house, there is some construction which is in dilapidated condition and existence of open space as well. The commissioner has reported that the open space and the dilapidated construction is part and parcel of house no. 141 belonging to the plaintiffs. Placing reliance on the report of the commissioner, the first appellate court has directed amendment to the decree. It does not appear that the first appellate court has gone beyond the pleadings and evidence and granted decree. It cannot be said that the direction contained in the decree passed by the first appellate court is beyond his powers. Decree has been passed by the first appellate court on appreciation of evidence placed on 4 record by the parties. The arguments advanced are essentially in respect of appreciation of evidence. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa202.06.odt