FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 298/2008 (Kantabai Laxmanrao Deshmukh thr L.R vs. Shatrughna Namdeo Dhomble) -------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : S.R.DONGAONKAR, J DATED : 6 th AUGUST, 2008. Heard Shri S.D.Chopde, Advocate, for the appellant. 2/- The appellant/original plaintiff had filed suit for permanent and mandatory injunction in respect of the suit lane whereby the injunction was sought against the respondent to restrain him from using suit lane. The learned trial Judge dismissed the suit observing that the suit lane is common lane which is being used by the plaintiff and the defendant and in such circumstances, the plaintiff has failed to prove that he is exclusive owner of the said property and was in possession of the same. 3/- The learned trial Judge has thus held that the plaintiff has failed to prove the exclusive right to the suit lane and as such the suit was dismissed. In appeal, agreeing with the view taken by the learned trial Judge, the learned appellate Judge dismissed the appeal. 4/- Learned counsel for the appellant contends that this is a fit case for remand of the matter in view of the observations of the lower appellate Court in para 11, which are thus; Applying the elementary test of who would fail, if no evidence was led on either side. I am very firmly of the view that the appellant going by the tenor of her case would be the loser, if the evidence from Gram Panchayat was not adduced. As a matter of fact, when the appeal was being argued at the bar, a question did arise as to whether even at this stage, the matter should be remanded to the trial Court to let the evidence from the Gram Panchayat be adduced. However, the learned appellant Judge has thereafter found that the appellant has failed to establish his case as raised in the suit. 4/- Learned counsel for the appellant has contended that the Gram Panchayat was not there to prove its ownership and therefore, the plaintiff should have been held to have owned that property. 5/- I have gone through the judgment of the trial Court as well as appellate Court. I do not find that they have taken any incorrect view of the matter. 6/- As regards remand of the matter, suffice it to say that though the Gram Panchayat was not made party to the suit, the plaintiff can not take advantage of his own wrong. He was required to prove that he was the owner of the suit lane and was using the same to the exclusion of all others. Once he fails to prove it , he would be non suited. 7/- Merely because the learned appellant Judge has observed that the matter could have been remanded, that necessarily does not mean that matter deserves to be remanded. 8/- Considering the reasons recorded by the learned trial Judge as well as appellate Judge, I do not find that any substantial question of law is involved in the matter. In fact the question of fact as to whether the plaintiff is established to be the owner of the suit lane was the crucial question in the matter and both the courts below concurrently have held that the plaintiff has not. As such the appeal fails. The same is dismissed. No order as to costs. JUDGE Rvjalit