( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 992 OF 2005 Shamshadbee w/o. Sk. Hakim & Anr. .. Appellants Versus Akhtarli s/o. Nawabali and anr. .. Respondents Miss Bhushan M. Kathar h/f. Shri S.V. Gangapurwala, Advocate for the appellants. Shri M.D. Joshi, Advocate for respondent No.1. Shri S.S. Shete, Advocate for respondent No.2. CORAM : P.R. BORKAR,J. DATED : 03.07.2009 P.C. :- 1. Heard Adv. Miss Bhushan M. Kathar h/f. Adv. Shri S.V. Gangapurwala for the appellants, Adv. Shri M.D. Joshi for respondent No.1 and Adv. Shri S.S.Shete for respondent No.2. The learned advocate for the appellants has taken me through the judgments of the Trial Court and the First Appellate Court. The appellant is the original plaintiff. The Trial Court decreed the suit partly and issued mandatory injunction directing respondent No.1 to make arrangement not to allow the flow of water from gallery on the wall of the ( 2 ) plaintiff and not to make storage the water of drain in the open space. 2. The plaintiff wanted that the gallery itself should have been demolished and therefore preferred appeal bearing Regular Civil Appeal No.330 of 2000. Same came to be dismissed by the learned District Judge, Aurangabad on 29.07.2009. The points of determination were framed. Both the Courts have come to the conclusion that the plaintiffs/appellants failed to prove their title to the disputed portion of the land. The Courts below have also held that no encroachment by respondent No.1 was proved and therefore both the Courts held that the present appellants/plaintiffs were not entitled to decree of pulling down the structure of gallery constructed by the defendant. 3. In para 8 the learned District Judge has observed that so far as open space is concerned, there was no evidence to show that it belongs to the plaintiff. There was a lane of 3 ft. width between the house of plaintiffs/appellants and respondent No.1. Respondent No.1 constructed ground floor in about 1980-82 and thereafter in 1992-93 constructed gallery ( 3 ) over the previous construction. It is ascertained from Adv. Shri S.S. Shete appearing for respondent No.2 that the construction of gallery made in 1992-93 was with permission. It is noted that there was no more encroachment on the side of the plaintiff's property while making construction and there is admission to that effect in the cross-examination that wall is in straight line. The plaintiff produced their title deed, but same did not reveal that the portion of the property in dispute is belonging to the plaintiffs. It is argued that the defendant should have been called upon to produce their sale-deed. But burden is necessarily on the plaintiff. It is not that the plaintiffs produced City Survey record and proved that there was encroachment. Considering the facts and circumstances of the case in my opinion, no substantial question of law arises in this Second Appeal. The same deserves to be dismissed. Hence, the Second Appeal is dismissed at the stage of admission. Parties are directed to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa992.05