IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 549 OF 2003 LAXMAN BALWANT DOMBE (DECEASED) BY L.R. SHRINIVAS LAXMAN DOMBE ..APPELLANT V/S SHIVPRASAD PURSHOTTAM SHENDE ..RESPONDENTS MR.AMIT SALE FOR APPELLANT. CORAM: A. S. OKA, J. CORAM: A. S. OKA, J. CORAM: A. S. OKA, J. DATE : 8TH FEBRUARY, 2008. DATE : 8TH FEBRUARY, 2008. DATE : 8TH FEBRUARY, 2008. P.C. 1. Heard the learned Advocate for the Appellant. The Appellant is the original plaintiff in a suit for injunction. According to the case of the Appellant, his father as well as the Respondent purchased adjoining properties from the same owner. The sale deeds in respect of both properties show that there is a common passage running from east to west between the two properties. The suit for injunction was filed as the Respondent started construction over the common passage. 2. The suit was contested by the Respondent by contending that there was a subsequent agreement executed between the Appellant and the Respondent on 25th January 1970 and the parties agreed that the : 2 : northern strip of land having width 3.1/2 ft. out of the common passage was to be kept open and common between the parties and the Respondent was allowed to use the strip of land having width 6.1/2 ft. towards southern side. According to the Respondent, the Appellant was permitted to make a door frame in the north south wall. 3. The trial court dismissed the suit by holding that the said agreement dated 25th January 1970 had been proved by the Respondent. The judgment and decree of the trial court has been confirmed in Appeal. 4. The submission of the learned Advocate for the Appellant is that the sale deeds clearly record that the entire suit passage will be kept open for common enjoyment of both the parties and therefore even assuming that the agreement dated 25th January 1970 was proved, the said agreement which was admittedly unregistered will not nullify the rights in favour of the Appellant. He submitted that agreement dated 25th January 1970 was not duly proved and only on the ground of inability of the original plaintiff to enter the witness box, the said agreement could not have been accepted as proved. 5. I have considered the submissions. The agreement dated 25th January 1970 was set up by the Respondent as : 3 : a defence in the written statement and therefore at the time of the trial, the plaintiff was made aware that the Respondent was relying upon the said agreement. The said agreement was proved by examining the Respondent’s mother and scribe of the agreement. On the other hand the original plaintiff did not step into the witness box and he examined his son who had no personal knowledge about the said agreement. The agreement is held to be proved by both the courts below on the ground that the same was proved in accordance with law. The courts below have drawn adverse inference against the plaintiff for not entering into witness box. 6. Therefore there is no error in the findings of the courts below and once the agreement is held to be proved, the parties are bound by the agreement. In the circumstances this court cannot grant any relief in favour of the Appellant. The grant of perpetual injunction is always discretionary and equitable. No substantial question of law arises. Hence Appeal is dismissed. --- (A. S. OKA, J) (A. S. OKA, J) (A. S. OKA, J)