1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.247 OF 1990 Mahadeo s/o Shankar Gore age 45 years, occup. Agril. r/o Palsap, Taluka & Dist. appellant/ Osmanabad. plaintiff versus 1. Dattu s/o Ganpati Mali age 45 years, occupation Agri. r/of Palsap, Taluka and District Osmanabad. 2. Kisan s/o Maruti Sakhare age 65 years, occupation Respondents/ and resident of as above. ori. defts. ---------- Shri V.G.Mete, Advocate, for the appellant. Shri S.S.Choudhari, Adv. for Respondent No.1. Coram: P.R. Borkar, J. Date : August 26, 2009. Oral Judgment 01. This is a second appeal directed against the judgment and decree passed by learned District Judge, Osmanabad, in Regular Civil Appeal No.146 of 1982 decided on 28.2.1989, whereby the judgment and decree passed by the 2nd Civil Judge, Senior Division, Osmanabad in Regular Civil Suit No.111 2 of 1978 decided on 26.2.1982 issuing permanent injunction, is set aside and the suit was dismissed. 02. Briefly stated, the appellant is admittedly owner of Gram Panchayat House bearing No.608 situated at village Palsap. It is ad- measuring 14 cubits north-south and 11 cubits east-west. Respondent-defendant No.1 is the adjoining house owner. Respondent No.1 has his house on northern side of the house belonging to plaintiff. Respondent No.2 is the owner of the house on southern side of plaintiff's house. Respondent no.2 has also his house on western side of the house of the plaintiff. There is no dispute regarding wall of plaintiffs house on the southern side. The dispute is only regarding walls on the northern and western side of the house of plaintiff. It is the say of the plaintiff that he is exclusive owner of all 4 walls by virtue of sale deed Exh.47 executed in his favour on 4.5.1967. He has also claimed right to construct house by putting G.I.C. sheets on disputed walls. 03. The trial court accepted the case of the plaintiff, relying upon the sale deed in his favour. However, the first appellate court allowed the appeal and set aside the decree passed by the trial court and dismissed the suit. It is 3 this order of the District Court which is challenged in this second appeal. 04. As per order passed on 18.1.1991, ground Nos. 5,6 and 7 in the appeal memo were treated to be involving substantial questions of law. Sum and substance of the substantial question of law involved is whether finding recorded by the District Court that the plaintiff-appellant is not exclusive owner of northern and western side walls of his house is perverse and not based on evidence. 05. Heard learned counsel for the respective parties. It is pointed out by learned Advocate for the appellant-plaintiff that the learned first appellate court has observed that so far as sale deed dated 4.5.1967 produced by plaintiff at Exhibit 47 is concerned, it does mention that the house including walls on all four sides was sold to the plaintiff and he had become exclusive owner thereof. But, such admission by vendor in his own favour or in favour of vendee is not sufficient. No independent evidence in the form of document like city survey record is coming forth. Defendant No.1 has also produced his own sale deed at Exh.54, which he had obtained from three vendors namely, Suleman, Ahmad and Abbas. It was executed on 12.10.1968 and therein also, it is mentioned that defendant No.1 had purchased house 4 including walls on all sides and was exclusive owner thereof. So, it is said that under these circumstances, the sale deed could not be the basis for proving exclusive ownership over the disputed walls. There is no other evidence and as such the plaintiff failed to prove his exclusive title over the disputed wall so far as Respondent No.1 is concerned. 06. So far as Respondent No.2 is concerned, he has come with a case that in between his house and the western wall of the plaintiff's house, there was another wall belonging to him. The plaintiff pulled down his own wall and now claims right over the wall of the respondent. In support of this, the First Appellate Court found two circumstances in favour of respondent No.2. The Court Commissioner's report on record clearly indicated that there were marks of the western side wall of the suit house having been pulled down. There was another wall. Thus the report is supporting the case of Respondent No.2. The District Court observed that the said wall is one mentioned in the sale deed dated 4.5.1967. 07. Another piece of evidence found to support the case of defendant No.2 is existence of door in the disputed wall facing east which could be exclusively used by defendant No.2. It is said that existence of door clearly indicated that the 5 disputed wall must be belonging to defendant no. 2 and it is not exclusively belonging to the plaintiff. 08. The appellate Court also considered that after purchase of the suit house, plaintiff - appellant had constructed a house which he delivered to his vendor Shabbir and thereafter filed R.C.S. No.23 of 1968 for possession. It is argued that if walls in dispute were exclusively belonging to the plaintiff, he had no reason to construct separate room and he could have constructed a room by raising GIC sheets on the walls in dispute. 09. It cannot be said that the reasons given by the first appellate court are in any way perverse. Inferences are drawn by referring to the circumstances on record. View taken by first appellate court is reasonable, probable view and, therefore, this court cannot disturb the said findings of fact in second appeal. 10. In the result, second appeal has no merits and the same is, therefore, dismissed. Parties to bear their own costs. pnd/sa247.90 (P.R.BORKAR, J.) 6