1 (SA 458 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 458 OF 2010 WITH CIVIL APPLICATION NO. 203 OF 2003 IN SECOND APPEAL NO. 458 OF 2010 Dhondiram Dattu Magdum ...Appellant Vs. Pandurang Tukaram Patil and Ors. ...Respondents ----- Mr.M.R.Suryawanshi for Appellant Mr.G.N. Salunke for Respondents ----- CORAM: V.M. KANADE J. DATED: 1st April, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Appellant and the Respondents. 2. The Respondents are the Original Defendants and the Appellant is the Original Plaintiff. The Plaintiff filed a suit for declaration, declaring that the Plaintiff is the owner of the CTS No. 414 and the backyard which is a open space admeasuring 7' x 40' sq.ft. According to the Plaintiff, between CTS Nos. 414 and CTS No. 415, there is a open space admeasuring 7' x 40 sq.ft. According to him, there was stones fencing between his property and 2 (SA 458 of 2010) property CTS No. 415. The Plaintiff claimed an order of injunction restraining the Respondents-Defendants from obstructing the possession of the Appellant in respect of the open space. The Court Commissioner was appointed, who submitted his report and the in the said report, it was stated that there was a stone wall between two properties, it appeared to be demolished recently and the trees were also cut. The suit was partly allowed. The Plaintiff preferred an appeal. The Trial Court held that the Plaintiff was in possession of the gobar gas plant and latrine. However, it was held that the Plaintiff had not proved that he was the owner of the said open space and, therefore, the relief of declaration which was sought by the Plaintiff was not granted. Against this order, the Defendants filed an appeal and cross objection was also filed by the Plaintiff. The Lower Appellate Court partly allowed the appeal. The cross objection of the Plaintiff was dismissed. However, suit for perpetual injunction was partly decreed. 3. The learned counsel appearing on behalf of the Appellant herein submitted that both the Courts had erred in refusing to grant declaration in favour of the Plaintiff. It was submitted that the Court Commissioner had submitted a report in his favour and both the Courts below had ignored the said report. 3 (SA 458 of 2010) 4. On the other hand, the learned counsel appearing on behalf of the Respondents-Defendants submitted that the CTS report showed that the Defendants were the owners of the said open space though it was in the possession of the Plaintiff. It was submitted that the Lower Appellate Court had granted injunction only in respect of the gobar gas plant and the latrine. 5. In my view, no substantial question of law is raised in the Second Appeal. Both the Courts, on the basis of evidence on record, have held that the Appellant/Plaintiff had not established that he was the owner of the said premises. No documentary evidence has been produced by the Plaintiff in support of his claim. Hence, in my view after perusal of the judgment and order of both the Courts below, there is no infirmity in the impugned orders passed by both the Lower Courts below. Second Appeal, therefore, is dismissed and disposed of. Civil Application does not survive and is also disposed of. (V.M. KANADE J.)