1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 493/2007 (Ashok Atmaram Dhabadgaonkar VERSUS Smt.Afzalbi wd/o Zulfiquar Khan & 4 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Mrs. Degwekar, counsel for the appellant. Shri Shareef, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 31, 2008. Heard the learned counsel for the parties. By this appeal, the appellant challenges the judgment passed by the District Judge, Nagpur in Regular Civil Appeal No.56/2003 on 08.03.2007. The appellant is the original defendant. A suit was filed by the plaintiff on a plea that she is a mohameddan woman and owner of house no.115 situated in Mahal, Nagpur. It is pleaded that the defendant is the owner of the house on the eastern side of the plaintiff's house. It is the case of the plaintiff that the defendant had constructed three sajjas on the eastern wall and had recently removed an almirah which was on the eastern side of the defendant's house and had opened a window therein. In spite of the notice 2 issued by the plaintiff for removal of sajjas and the window on the eastern wall, the defendant failed to remove the same, as a result of which, the right of privacy of the plaintiff was affected. The plaintiff, therefore, sought a mandatory injunction against the defendant. The defendant denied the claim of the plaintiff and pleaded that there was a open lane in between the house of the plaintiff and the defendant. According to the defendant, the lane was Nazul land and certain proceedings were pending in respect of the encroachment by the plaintiff over the Nazul land. The defendant pleaded that the plaintiff had no right to seek the demolition and removal of the sajjas and closure of the window. The defendant sought for the dismissal of the suit. The trial Court, on an appreciation of the evidence on record, held that the plaintiff had succeeded in proving that she is the owner of the suit land. However, the Court held that the defendant succeeded in proving that the sajjas were constructed prior to 1975 and the suit filed by the plaintiff was barred by limitation. The Court further held that the plaintiff could not have claimed any right against the defendant in respect of opening of the window on the eastern 3 side of his house. The suit of the plaintiff was, therefore, dismissed. In an appeal filed by the plaintiff against the judgment passed by the trial Court, the first appellate Court reversed the findings recorded by the trial Court so far as the opening of the window on the eastern side of the defendant's house was concerned and the first appellate Court held that the opening of the window infringed the right of privacy of the plaintiff. The first appellate Court categorically recorded a finding that the window was recently created on the eastern side by converting a cup- board (Almirah) into a window. The Court further held that the said construction was made by the defendant without seeking sanction from the concerned authorities. The first appellate Court heavily relied on the admission of the defendant in his cross-examination that the plaintiff was the owner of the disputed lane situated in between the house of the plaintiff and the defendant. The first appellate Court, however, dismissed the case of the plaintiff so far as the removal of the sajjas was concerned. The findings recorded by the first appellate Court are pure findings of fact which do not give rise to any substantial question of law. 4 The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE