(1) SA. 439.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 439 OF 2009 Shamkant S/o Surajmalji Birla, Age : 40 years, Occu.: Business, R/o. 56, Bhavani Peth, Jalgaon Dist. Jalgaon .. Appellant VERSUS Surajmal S/o Jivanram Birla, Age : 69 years, Occu.: Business, R/o. 56, Bhavani Peth, Jalgaon, Dist. Jalgaon .. Respondent WITH CIVIL APPLICATION NO. 6421 OF 2009 IN SECOND APPEAL NO. 439 OF 2009 Shamkant S/o Surajmalji Birla .. Applicant VERSUS Surajmal S/o Jivanram Birla .. Respondent Mr. S.V. Gangapurwala, Advocate for the appellant- applicant Mr. V.B. Patil, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 30TH SEPTEMBER, 2009 ORAL ORDER:- 1] Heard. This Second Appeal challenges the concurrent findings recorded by the Courts below. (2) SA. 439.2009 2] The respondent who is father of the appellant filed a suit and sought perpetual injunction for preventing the appellant from using the W.C. which he claimed to have constructed. He sought mandatory injunction, requiring the appellant to construct a wall in between the properties of the parties. . It is common ground that in a registered partition deed, the parties divided house property amongst themselves and gave shares even to the other family members. Initially in the house property, there was only one W.C. Unfortunately this w.c. went to the share of other member of the family, who is not party to this suit. Due to this, both the appellant and the respondent were left with no W.C. for their use. A new W.C. was constructed admittedly in the portion which went to the share of the respondent. The appellant and the respondent both claimed that they constructed the W.C. 3] The Courts below held that the respondent had proved that he had constructed this W.C. So, the Courts below decreed the suit and issued perpetual injunction and prevented the appellant’s use of this new w.c. The Courts below also ruled in favour of the respondent and directed him to undertake construction of the wall between the shares of the parties. (3) SA. 439.2009 4] The learned Advocate appearing for the appellant asserted that the Courts below erred in ignoring the respondent’s admission, which he recorded in his notice prior to filing of the suit that it was the appellant who had constructed the w.c. Assuming the respondent had admitted initially the fact that the w.c. was constructed by the appellant; since the structure was erected on the land that belongs to the respondent, the appellant admittedly entered upon the share of the respondent unauthorisedly for the construction. Since the structure of the W.C. is now standing in the share of the respondent, he has right to stop the appellant’s entry and use of the w.c. in absence of any agreement to the contrary. So, this minor error in appreciation of facts by the Courts below, would not give rise to any substantial question of law. 5] The learned Advocate of the appellant argued, the respondent could not have filed the suit for perpetual and mandatory injunction, but he should have sought specific performance of the deed of partition. He also brought to my notice that the Courts below blissfully forgot that the parties had initially agreed that they would share the expenditure of the wall equally. This objection also would not give rise to a substantial question of law. Issuance of the mandatory injunction (4) SA. 439.2009 virtually amounted to specific performance of the term of partition deed. Besides it is obvious that he could recover proportionate expenses for construction from the respondent. The Second Appeal should therefore, fail. Second Appeal stands dismissed. 6] In view of dismissal of the Second Appeal, Civil Application no. 6421 of 2009, also stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp