1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 403/2006 (Asaf Khan Gulab Khan & 2 others VERSUS State of Maharashtra & 2 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri V.K. Paliwal, counsel for the appellant. Shri A.D. Sonak, Assistant Government Pleader for the R/State. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 4, 2008. Heard the learned counsel for the parties. The appellants are the original plaintiffs. A suit was filed by the plaintiffs on a plea that they were the owners of plot nos.91 and 94 and had a right to use Nazul Plot no.92 which was in the nature of a service lane. It is the case of the plaintiff that they used to go towards plot no.93 for the purpose of cleaning the old type of toilets and the said user was approved by the municipal council. It is pleaded by the plaintiffs that the defendant nos.2 and 3 entered their names as owners of plot no.92, service lane, in collusion with the officers of defendant no.1, the State of Maharashtra. The plaintiff, therefore, sought a declaration that they had right to use the service lane of plot no.92 to approach the plot 2 no.93 and also sought the confirmation of their possession over plot nos.91 and 94 which were owned by them. The plaintiffs sought a declaration that the defendant nos.2 and 3 were not owners of entire Nazul Plot No.93 and were also not owners of Nazul Plot No.92. Certain other reliefs were also sought by the plaintiff. The defendant nos.2 and 3 denied the claim of the plaintiffs. The defendant no.1, State of Maharashtra, however, did not file any written statement. The defendant nos.2 and 3 claimed ownership over plot no.95 and plot no.92 also. They sought for the dismissal of the suit filed by the plaintiffs. The trial Court, after considering the evidence on record, held that the plaintiffs had succeeded in proving that they had a right to repair their wall as well as approach Nazul Plot No.93 through the service lane i.e. Nazul Plot No.92. The trial Court declared that the defendant nos.2 and 3 were not the owners of plot no.92 but, were the owners of plot no.95 only. The trial Court also confirmed the possession of the plaintiff over the plot nos.91 and 94. Consequently, the trial Court partly decreed the suit of the plaintiffs by holding that the plaintiffs had a right to approach plot no.93 3 through the service lane i.e. Nazul Plot No.92. In an appeal filed by the defendant nos.2 and 3, the defendant nos.2 and 3 moved an application under Order XLI Rule 27 of the Code of Civil Procedure for producing the sale- deeds which were executed by the State of Maharashtra by which the plot no.92 was sold by the State to the defendant nos.2 and 3. It was pointed out on behalf of the defendant nos.2 and 3 that the said documents were not available with the defendant nos.2 and 3 when the matter was pending before the trial Court and since the documents could have thrown a lot of light over the controversy in issue, it was necessary to produce them on record. The first appellate Court, after hearing the counsel on both the sides at length, allowed the application and permitted the defendant nos.2 and 3 to produce the documents on record. On perusal of the documents, it was realised by the first appellate Court that there was outright sale of Nazul Plot No.92 by the State Government in favour of defendant nos.2 and 3. In view of the sale-deed executed by the State as also the other documents which were produced on record, the first appellate Court held that the defendant nos.2 and 3 had succeeded in proving that they were the 4 owners of plot no.92. The first appellate Court, therefore, reversed the findings of the trial Court in that regard. The first appellate Court further held that the plaintiffs had failed to prove their exclusive right over plot no.93. The first appellate Court held that the plaintiffs were entitled to repair the southern side wall of their house through plot nos.92 and 95. The findings recorded by the first appellate Court are challenged in the instant appeal. I have perused both the judgments in detail. On the basis of the documents which were produced by the defendant nos.2 and 3 on record, it was amply clear that the defendant nos.2 and 3 were the owners of plot no.92 which was sold by the Government to the defendant nos.2 and 3 by registered sale-deed. The other documents on record also reflected that plot no.92 stood in the name of defendant nos.2 and 3. The appellate Court, therefore, rightly held that the defendant nos.2 and 3 had succeeded in proving their ownership over plot nos.92 and 95 and the plaintiffs had merely a right to repair the southern wall of their house by entering the plot nos.92 and 95. The findings recorded by the first appellate Court are pure findings of facts which 5 do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE