( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 544 OF 2009 Shri Madhukar Jagannath Harane APPELLANT VERSUS Govind Narayan Wani RESPONDENT ..... Mr. S.P. Tiwari, advocate for the appellant. Mr. P.S. Shendurnikar, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th November, 2009] PER COURT : 1. Heard counsel. 2. The appellant is original plaintiff. He filed suit (R.C.S. No. 98/2004) for removal of encroachment on his house property bearing southern half portion out of house No. 22 situated at village Satgaon (Dongri). The trial Court noticed that the encroachment as such was not proved but found that the defendant had fixed iron angles in the middle wall which were directed to be removed by issuing mandatory injunction. The plaintiff, it was held, could not prove the encroachment as alleged but the fixation of iron angles itself amounted to ( 2 ) encroachment on the wall of the plaintiff and as such, the mandatory injunction was issued. The defendant preferred appeal (R.C.A. No. 149/2006). The first Appellate Court held that there were no pleadings regarding encroachment caused by fixing iron angles in the plaintiff’s wall, nor the removal of iron angles was specifically sought in the suit. Therefore, the first Appellate Court allowed the appeal and directed dismissal of the suit. 3. On perusal of judgements of the Courts below, it is explicit that house No. 22 = C.T.S. No. 16 admeasures 78.70 sq.meters and admittedly, the southern half portion was purchased by the plaintiff in the year 1993 from Ravindra Narayan Wani and the northern half portion was purchased by the defendant in 2003. It has come on the record that there existed a common middle wall between the two houses which was of 15 inches thickness. It has also come on record that the plaintiff got demolished his house property and started renovation work after demolishing the middle wall also. It is an admitted fact that the plaintiff reconstructed the house property and at the same time, constructed the northern wall to his house. Obviously, the defendant had not made any construction at the relevant time. The plaintiff admitted in his testimony that he was in possession of the area which was purchased by him and has constructed a double-storied building over the same area. He also admitted demolishing of common wall of 15 ( 3 ) inch width while carrying out construction of his house. The first Appellate Court has rendered the findings of fact including the finding that for want of pleadings of the parties, mandatory injunction regarding removal of the iron angles was uncalled for. No substantial question of law is involved in this appeal. Hence, the second appeal is dismissed. 4. In view of dismissal of the second appeal, the civil application No. 7735/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa544-09