1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 421/2010 (Shitaram Tukaram Nikam VERSUS Anusaya Rambhau Pawar & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri R.G. Kavimandan, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 27 , 2010 . Heard. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the wall on the Northern side of his house was exclusively owned by him and the defendants cannot make any construction by treating it as a common wall. It was the case of the plaintiff that he had purchased the plot with a plinth standing thereon. Since the defendant did not leave any open space and treated the Northern side wall as a common wall, the suit was instituted for permanent injunction. The defendant nos.1 and 2 filed the written statement. According to them, the wall on the Northern Side of the plaintiff's house was a common wall. It was pleaded that the defendant was also having a right to use the said 2 wall. The defendants pleaded that the plaintiff had constructed the said wall by using defendants plot admeasuring half foot in width. It was pleaded that the expenses of the construction were made by the mother of the defendant no.1 and the vendor of the plaintiff and the defendant no.1, by name Kesharbai. It was pleaded that the wall was a common wall and the suit was liable to be dismissed. Both the Courts, on a proper appreciation of the evidence on record, held that the plaintiff failed to prove that he is the exclusive owner of the suit wall and the suit wall was a part of his property. The Courts held that the plaintiff was not entitled to a declaration as sought by the plaintiff. While recording the aforesaid finding, the Courts relied on the oral evidence of the parties and the sale-deed produced on record. The Courts observed that though it was the case of the plaintiff that the Southern side wall was constructed by the plaintiff and one Vishwanath Wanjari, the plaintiff had not examined Vishwanath Wanjari to prove his case. The Courts observed that the vendor of both, the plaintiff and the defendant no.1, was Kesharbai and she had sold half of the plot to each of the parties i.e. 16½ Feet X 33 Feet. The Courts have properly appreciated the material evidence on 3 record, specially the oral evidence tendered by the witnesses and the sale-deed and photographs to hold that the plaintiff had not succeeded in proving that the suit wall was exclusively owned by the plaintiff. The findings recorded by both the Courts do not give rise to any substantial question of law. Though both the Courts have referred to the report of the Commissioner, though he was not examined, the Courts have also examined the other pieces of evidence on record to hold that the plaintiff had failed to prove his case. Since the findings recorded by both the Courts do not give rise to any substantial question of law, the appeal fails and is dismissed with no order as to costs. JUDGE APTE