( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 142 OF 1990 Mohammad Yasin s/o Md. Ibrahhim, age 36 yrs, occ. Trade, r/o Sadar Bazar, Jalna Post & Dist Jalna. .. Appellant (orig plaintiff ) Versus Abdul Rehman s/o Jan Mohammad deceased per L.Rs. 1. Shamsuddin s/o Abdul Rehman, age 32 yrs, occ. Business, r/o Sadar Bazar, Jalna. 2. Asgari Begum w/o Abdul Rehman, age 52 yrs, Occ. Household. r/o Sadar Bazar (Dana Bazar), Jalna. .. Respondent (orig. Defendants.) Mr. Y.M. Khan, Advocate for the appellant. CORAM : P.R. BORKAR,J. DATED : 24TH JULY, 2009. ORAL JUDGMENT :- 1. This is a second appeal is filed by the original plaintiff. Plaintiff has ( 2 ) filed a civil suit, bearing regular civil suit No.15/1971 which was dismissed by the learned Joint Civil Judge junior Division, Jalna on 30 th November, 1976 which judgment and decree is further confirmed in Regular Civil Appeal No. 28/1983 by the 2 nd Additional District Judge on 15.07.1989. 2- Briefly stated the case of the appellant , disclosed in the plaint is that he is the owner and possessor of municipal house No.1982 situated at Sardar Bazar, Jalna. The defendant has his house property on southern side. There is a wall in between house of the plaintiff-appellant and respondents. It is alleged by the appellant-plaintiff that defendant illegally and unauthorizedly constructed 50 to 60 feet high wall on the boundary wall which was already there and this is encroachment on his rights. 3- Trial Court so also first Appellant Court framed necessary issues/points and both were came to the conclusion that the plaintiff- appellant failed to prove his ownership over the wall and as such, he is not entitled to any relief claimed. The appellate Court came to a conclusion that disputed wall did not exclusively belong to plaintiff-appellant but it is exclusively belong to defendant. There was no encroachment made by the respondents. The sale deed produced by the appellant in appeal is not sufficient to prove the plaintiff’s claim. Hence appeal was dismissed. Prayer for remand was also refused. 4- This appeal is admitted on substantial question of law ( 3 ) incorporated in ground No.8, 9 and 11 of the appeal memo which are as follows :- Ground No. 8 :- The sale deed of 1348 Fasli though not taken on record, still the learned judge only cursorily and partially given a bare glance only to find out the defect on the recital “along with wada”. This is a mis-interpretation of documents. Ground No. 9 :- The inference drawn from the expression “along with wada” used in the sale deed of 1348 Fasli so as to exclude “four walls” iin the observations made in para No. 12 of the impugned judgment (appellate Court) is misplaced. Similar is expression “court-yard” dealt with in a rather thread-bare manner. Ground No.11 :- The entire reasoning given in para no. 13 of the impugned judgment is beside the point. The construction made by the respondent on a property other than him could not have been validated. 5- Heard Shri Y.M. Khan, for the appellant. None present for respondents. In appeal original Urdu sale deed is produced. It is executed on 1346 Fasli which is about (1937 AD). Abuttals of the property are given but there is nothing to show that of the property on the southern side , there is any wall exclusively belonging to the vendor. After going through the ( 4 ) judgment of the trial Court and the first appellate Court, it appears that both of them have considered entire evidence on record and recorded concurrent findings that it is not proved that wall in question was exclusively belonging to plaintiff. In paragraph No.14 of the judgment of appellate Court, it is stated that the plaintiff’s witness Ramchandra who was a mason admitted that there was different wall of the defendant just adjacent to the wall plaintiff. Naturally, it follows that defendant must have constructed on his wall. In paragraph No.15 of the judgment, the Learned Additional District Judge referred to the permission obtained by the defendant from the Municipal Council. It is said that plaintiff, if there was an encroachment would have immediately taken up the matter with the Municipal Council. The detail evidence of the parties is discussed by both courts. 6- Considering the totality of evidence in my opinion, this is not a case any where interference is warranted with the findings of the fact by the trial Court. The sale deed which is produced before the District Court does not help the appellant-plaintiff in establishing his case. In the result this appeal is dismissed. [P.R. BORKAR,J.] aaa/sa142.09.odt *****