1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.655 OF 2004. Bhagwan Vithal Dalvi and another ... Appellants. Versus Ramabai Prabhakar Keskar deceased through her L.Rs. Manohar Prabhakar Keskar and others ... Respondents. ... WITH SECOND APPEAL NO.1246 OF 2004. Bhagwan Vithal Dalvi and another ... Appellants. Versus Ramabai Prabhakar Keskar deceased through her L.Rs. Manohar Prabhakar Keskar and others ... Respondents. Mr.S.V.Natu, advocate for the appellants Mr.S.D.Kulkarni, advocate for the Respondent No. 1. ... 2 CORAM : S.V.GANGAPURWALA,J. Date : 14.10.2010. PER COURT 1. The present appellants had filed a suit for injunction with regard to the gallery. So also the present Respondents had filed the suit in respect of the same subject matter. The suit filed by the present appellants came to be dismissed and the suit filed by the present Respondents came to be decreed. The present appellants preferred appeal. The lower appellate Court by its common judgment confirmed the judgment and decree passed by the trial Court. The moot question was regarding the right of the use of shed like structure which is termed as gallery. According to the present appellants, it is a common property, whereas according to the Respondents, the same exclusively belongs to the appellants. The said gallery admeasures 10x2 fts. 2. Mr.Natu, learned counsel for the appellants submitted that vide arrangement deed 3 Exh.92 which is of the year 1907, the house was divided into two parts. The present Respondents are purchasers of one part from co-owner vide sale deed executed in the year 1932. The property was joint earlier. All the walls are joint. The window on the wall is also joint and the present Respondents can not have exclusive right over the same. The access to the said gallery is from the said window. It has also been proved that the said gallery protrudes over the premises of the present appellants. In such circumstances, the Respondents can not be assumed to be the exclusive owners just because the gallery is mentioned in the sale deed executed by Misal in favour of present Respondents, that would not give them ownership right as present Respondents are not party to the same. The said gallery was closed for all these years and as such question to raise the objection did not arise. He further submitted that the subsequent suit filed by the present Respondents claiming right of easement over the said window has been dismissed and the same has been confirmed by this Court in Second Appeal. 4 3. According to Mr.Natu, the Courts below have not considered this aspect of the matter and had given a perverse finding. 4. Per contra, Mr.S.D.Kulkarni, learned counsel for the Respondents invited my attention to the findings and the observations of the Courts below which shows that the access to the gallery is from the house of the Respondents and the gallery is opening towards the house of the Respondents through the said window. According to him, in 1932, the relations between the parties were cordial and the fact that the sale deed itself mentions about the existence of the said gallery and the same was not objected by present appellants shows that even the present appellants have accepted this position. 5. With the assistance of the learned counsel for the parties, I have gone through the judgments passed by the Courts below. Both the Courts have concurrently held that the said gallery is exclusively owned by the plaintiffs. The oral evidence has also been considered while 5 coming to the conclusion. The sale deed of the year 1932 in favour of the present Respondents which shows that the said gallery is exclusively owned by the present Respondents. There is no documentary evidence showing that the said gallery is for the common use and enjoyment of the property. The lower appellate Court has discussed the evidence of the witnesses and has come to the conclusion that the gallery opens towards the house of the Respondents through the window and the same has an access from the house of the present Respondents. The said findings are findings of facts arrived at concurrently by both the Courts below. It appears to be plausible finding. In such circumstances, it can not give rise to the substantial question of law for interference under Section 100 of the C.P.C. As such the Second Appeals are dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa65504 6