1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 217/ 2004 (Vishwanath Pandurang More & others Versus Laxmibai Ramrao More & others) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr.Ghare, Advocate for the appellant. Mr.Wankhede, Advocate for the respondent. CORAM : Smt. Vasanti A. Naik, J. DATED : 31 st August, 2007. Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff for perpetual injunction restraining the respondent/defendant from causing obstruction to the peaceful possession of the plaintiff over the suit house. According to the plaintiff, the plaintiff was the owner of the suit house and was in peaceful possession thereof. The defendant denied the claim of the plaintiff and further pleaded that there was a open space in between the house of the plaintiff and the defendant and the defendant was using it for 2 several years. The defendant also claimed the ownership over the open space. On the aforesaid pleadings of the parties, the trial Court framed the necessary issues and after considering the evidence tendered by the parties on record granted permanent injunction in favour of the plaintiff in respect of the suit house. The trial Court then restrained the plaintiff perpetually from making any obstruction and interference which was towards the eastern side of the house of the plaintiff. The claim of the plaintiff and the counter claim of the defendant was thus partly decreed. In two separate appeals preferred by the plaintiff and the defendant against partial rejection of their claim, the first appellate Court reversed certain findings recorded by the trial Court. The first appellate Court decreed the counter claim filed by the defendant by granting a decree of permanent injunction against the plaintiff. The first appellate Court, however, reversed the finding 3 recorded by the trial Court so far as it granted permanent injunction in favour of the plaintiff and against the defendant in respect of the user of the open space. The first appellate Court rightly held that the plaintiff had not pleaded that he was the owner of the house as well as the open space in between the house of the plaintiff and the defendant. The defendant in fact had pleaded in his written statement that he was the owner of the open space and had also filed a counter claim seeking permanent injunction restraining the plaintiff from using the open space. The first appellate Court, therefore, rightly held that in absence of any prayer seeking permanent injunction, the trial Court was not justified in granting the injunction in favour of the plaintiff and against the defendant. Hence, the first appellate Court rightly partly allowed the first appeal and reversed the finding only in regard to the prayer for grant of permanent injunction against the defendant. There is no illegality whatsoever in the 4 finding recorded by the first appellate court so far as it reversed the decree of grant of permanent injunction in respect of open space in favour of the plaintiff and against the defendant. The findings recorded by the first appellate Court are based on a proper appreciation of the material evidence tendered by both the parties on record. Since no substantial question arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE