1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.284 OF 1991 Yashwant Bhila Puse .. APPELLANT (orig.Plaintiff) VERSUS Ashok Ramchand Puse .. RESPONDENT (orig.Defendant) ***** Mr.AN Nagargoje, Adv. h/for Mr.VJ Dixit, Sr.Counsel for Appellant; Mr.PR Patil, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 24th June, 2009. ORAL JUDGMENT : 1) Heard both the counsel extensively. 2) The decree in favour of plaintiff dated 17th August, 1988, restraining the defendant from carrying business activities of flour mill in House No. 264 was challenged by the aggrieved defendant in the First Appeal, being Civil Appeal No. 225 of 1988. The appellate Court reversed the decree of injunction and allowed the appeal, whereby the defendant was permitted to carry or conduct flour mill from his House no.265. This 2 order of the first Appellate Court dated 9th March, 1990 is assailed by the plaintiff. 3) The Second Appeal is admitted on 19.11.1991 without formulating any substantial question of law. Now, in order to proceed with the appeal, following substantial question of law is formulated - “Whether commencement of flour mill by the defendant provides a right in the plaintiff to seek mandatory injunction as his activities caused vibrations to the walls and also damage the wall of the appellant/plaintiff?” 4) The parties are enterse relations. Their houses adjoin each other with a common wall. The installation of the flour mill was in the house No. 265 of the defendant. The defendant at the material time has on 31.12.1985, informed he was in the process of erecting the flour mill in his own house. It was his contention that there was already a flour mill in his house conducted on oil engine. The question of common wall of both the houses is not in controversy. 5) The Court record indicate, an application Exh.8, dated 24.6.1985 was moved by the plaintiff for appointment of Court Commissioner to report actual condition of the respective premises of the plaintiff and defendant. The work was carried as per the report Exh.14 dated 12th July, 1985. It is more than 3 clear, the written statement of the defendant was filed subsequent to such Commissioner’s report. 6) It is established that father of the plaintiff and defendant too had controversies over the rights in the wall, as vide Exhibit-79, notice dated 28th January, 1981 was sent by the plaintiff’s father. This indicates that there was already bad blood between the parties from the time of their parents. The learned Appellate Court found, based on the Commissioner’s report, there is absolutely no evidence to suggest as to what further damage, apart from one, noted by the Commissioner, was caused to the property of the plaintiff on account of running of the flour mill. The activities of conducting the flour mill, if it is not with the valid permission from the competent authorities, law will take its recourse, but for that purpose the plaintiff cannot seek a mandatory injunction from the Court. He has the recourse to apply to the concerned authorities, even object to grant of such permission, satisfying them his cause and concern. It was informed by DW 3 – Govinda Nimba Patil of the panchayat samiti that from 25th November, 1985 it was no more necessary to obtain permission from Zilla Parishad or panchayat samiti for running a flour mill. If this was so, there was no legal reason for the plaintiff to have objected for such purposes. 7) On assessment of the evidence, the first 4 Appellate court found the measure of the damage in the wake of running of the flour mill and the evidence has not come on record, which needs consideration. There is absolutely no legal and reliable evidence produced by the plaintiff to establish the exact nature and measure of damage actually sustained by him to the property on account of running of the flour mill. It is thus apparent, mere apprehension nursed by the plaintiff was the root cause. It was, as could be seen, long drawn controversies between parents of both the parties. Thus, I do not see there is any error on the part of the first Appellate Court in setting aside the decree of mandatory injunction against the defendant for removal and dismantling of machinery of the flour mill. There is no legal right subsisting to the plaintiff to seek such injunction inhibiting the defendant to carry business activities in his premises, particularly within four corners of law. The substantial question of law is answered in favour of the defendant. In the situation, the Second Appeal sans merit, contemplated business by the defendant could not be objected. Second Appeal dismissed. No costs. ( K.U.CHANDIWAL) JUDGE bdv/sa284.91 Authentic copy (BD VADNERE,PS)