1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 729 OF 2008 Anurdhaj s/o Madhav Naikwade & others .. APPELLANTS VERSUS Pandharinath s/o Ramrao Naikwade .. RESPONDENT Miss N.A. Jain, Advocate for the appellants. Shri S.A. Dhengle, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 14 th September 2009 PER COURT : 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. 2 Respondent / original plaintiff instituted Regular Civil Suit no. 114/2005 claiming perpetual injunction in respect of an area admeasuring 6 ft. x 50 ft situate between the residential premises belonging to plaintiff and defendants. According to plaintiff, there was an agreement between the 2 parties on earlier occasion and it was admitted by the parties that an area admeasuring 6 ft x 50 ft will be available for being used by plaintiff as access to reach his residential premises. However, it is the contention of plaintiff that defendants are trying to interfere in the user of access. It is also alleged that the defendants are trying to raise construction over the area of 6 ft x 50 ft which has been earmarked as an access for reaching the property belonging to plaintiff. 3 Defendants appeared and resisted the contentions raised by plaintiff by filing written statement. It is the contention of the defendants that plaintiff is not entitled to claim area to the extent of 6 ft x 50 ft as access for reaching his residential premises. Defendants have also denied the agreement and have claimed that plaintiff has raised construction over the area which belongs to defendants. Thus, defendants want to contend that plaintiff has no entitlement for user of 6 ft x 50 ft lane. It is infact contended by defendants that the constructed portion in occupation of the defendants admeasures 36’ wide to the west side which comprises of 24 Khan Malwad. Thus, defendants pray for dismissal of the suit. 4 Trial court after recording evidence led by the parties came to the 3 conclusion that plaintiff has established his case in respect of entitlement over an area to the extent of 6 ft x 50 ft situate towards northern side of his house. It has also been held by the trial court that plaintiff has established his peaceful possession over the suit property. Thus, trial court was pleased to grant decree in favour of plaintiff and issued retrain order against the defendants restraining them from interfering in possession of the plantiff over an area to the extent of 6 ft x 50 ft situate towards northern side of house no. 176 belonging to the plaintiff. Judgment and decree passed by the trial court was subjected to challenge at the instance of defendants in Regular Civil Appeal no. 114/2005 which came to be heard and disposed of by the 1 st Adhoc Additional District Judge, Beed who was pleased to dismiss the same by judgment dtd. 29-4-2006. 5 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. Plaintiff has based his claim on an agreement executed between the parties on 19-7-1972. Witness no. 2 for defendant has admitted execution of the agreement and has also further admitted existence of lane admeasuring 6 ft x 50 ft. Considering the reasons recorded by the trial court, I am of the opinion that the courts below have not committed any error in granting 4 decree in favour of the plaintiff. Arguments advanced are essentially the matters relating to 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/sa729.08.odt