-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.402 OF 2007 APPEAL NO.402 OF 2007 APPEAL NO.402 OF 2007 Babu Dnyani Otvi ...Appellant vs. Manohar Nivrutti Chopade & Ors. ...Respondents Mr.Bhushan Walimbe for the Appellant Mr.Anilkumar Patil for Respondent No.2 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JANUARY 11,2008. : JANUARY 11,2008. : JANUARY 11,2008. P.C.: P.C.: P.C.: 1. Heard Advocate for the Appellant. The Appellant is the original first defendant. The first and second Respondents are the original plaintiffs. A suit filed by the Respondents was dismissed by the trial court. The Appellate Court has interfered and has passed a decree of declaration holding that the Respondents are the owners of the suit walls described in paragraphs 1B and 1C of the plaint. However, the prayer for perpetual injunction against the Appellant was dismissed. 2. The submission of the learned Counsel for the appellant that the Appellate Court has committed an error by relying upon the sale deed dated 18th June 1945 only on the ground that it was a 50 years old document. He submitted that the contents of the document have not been proved by examining the vendor. He invited my attention to the cross examination of one of the plaintiffs in which it was stated that what was purchased was an open plot with a wall. He invited my attention to the finding recorded by the learned trial Judge as regards the sale deed. He submitted that the city survey -2- record does not support the case of the Respondents-plaintiffs. 3. I have carefully considered the submissions. The Appellate Court has relied upon the sale deed dated 18th July 1945. After considering the the said sale deed, the Appellate Court held that the Respondents have proved their ownership of the walls. The Appellate Court has rightly invoked the presumption available to a 30 years old document. The Appellate Court observed that except for city survey map there was no evidence adduced by the original defendants for establishing their ownership or of their right in respect of the walls. 4. In paragraph 18 of the Judgment the Appellate Court has recorded a finding that the defendants are using the said two walls owned by the plaintiffs from the side of their respective houses. The Appellate Court has protected the the user of the walls by the defendants from their side and has declined to grant perpetual injunction. Perpetual injunction which was prayed for by the plaintiffs was that the defendants should be restrained from interfering with possession of the plaintiffs over the suit walls. The Appellate Court has specifically held that the exclusive possession and user of the walls has not been established by the plaintiffs. 5. No substantial question of law arises. Subject to what is stated above, Second Appeal is dismissed with no order as to -3- costs. JUDGE JUDGE JUDGE