1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 69 OF 2009 with CIVIL APPLICATION NO. 1211 OF 2007 Shri Damodar Ananda Ahire (since deceased) through his legal heir: Ramchandra Damodar Ahire .. Appellant (Orig. Plaintiff) Vs. Sulyabai @ Sulochana Dashrath Jondhale & Ors. Respondents (Org.Defts.Nos.1 to 3) Mr. P.B.Shah, Advocate, for the appellant. CORAM: J.H.BHATIA,J. DATE : 14th September, 2009. P.C. 1. Heard the learned Counsel for the appellant, who was the original plaintiff in Regular Civil Suit No.643 of 1992. According to him, he is the owner of land Gat No.23/1 situate at Village Goverdhane, Taluka & District Nashik. Land Gat no.23/2 belongs to the respondents, who were the defendants in the said suit. The plaintiff filed the suit for declaration of his title and for perpetual injunction restraining the defendants from causing any obstruction in his possession over the land Gat No.23/1. A temporary injunction was also granted in his favour. Pending the suit filed by the present appellant, the respondent No. 2 1, Sulochana also filed Regular Civil Suit No.703 of 1995 contending that she was in occupation and possession of the shed or house and the defendant i.e. the present appellant was causing obstruction in her possession. She got ex-parte temporary injunction against the present appellant. Later on, the present appellant made amendment in Regular Civil Suit No.643 of 1992 contending that taking advantage of the ex-parte temporary injunction granted in Regular Civil Suit No.703 of 1995, the respondent No.1 had constructed a shed in the land Gat No.23/1. Therefore, he sought mandatory injunction for removal of that shed. 2. The trial Court decreed RCS No.643/92 accepting all the contentions of the present appellant and dismissed R.C.S. No.703/1995 filed by the respondent No.1 – Sulochana. Against the common judgment in both the suits, respondent No.1 preferred Regular Civil Appeal No.222 of 1999 against the judgment and decree in R.C.S. No.643/1992. She also filed Regular Civil Appeal No.223 of 1999 against dismissal of her suit, being RCS No.703/1995. The appellate Court by the common judgment dated 10.10.2006 dismissed Regular Civil Appeal No.223 of 1999 and confirmed the dismissal of RCS no.703 of 1995 filed by the respondent no.1 – Sulochana. 3. The appellate Court partly allowed Regular Civil Appeal No.222 of 3 1999 and confirmed the judgment and decree of the trial Court in RCS No. 643/1992 to the extent of perpetual injunction in favour of the present appellant, but set aside the order to the extent of mandatory injunction for removal of the shed in land Gat no.23/1. Therefore, the appellant has preferred this Appeal. However, on perusal of the reasons given by the first appellate Court in para 26 of the judgment for refusing the mandatory injunction, it appears that as per the evidence of PW-3- Anil Kapadnis, the said shed in Gat No.23/1 was in fact constructed by the son of the present appellant. If it is so, the mandatory injunction could not be granted against the respondent No.1 – Sulochana. 4. Taking into consideration the reasons given by the appellate Court, I fail to understand why this Appeal has been filed by the present appellant. The appellate Court finds that shed was constructed by the son of the plaintiff himself in his own land. If it is so, the plaintiff is the owner of the same. If he wants, he can remove as and when he likes. But as it was not constructed by the respondent No.1, the mandatory injunction could not be granted. In view of these circumstances, I find no substance in the present Appeal. No question of law is involved. 5. In the result, the Appeal stands dismissed. 4 6. As the Appeal itself is disposed of, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)