1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 956 OF 2004 Rajaram Madhav Joshi .. Appellant Vs. Sharad Narayan Joshi .. Respondent Mr. M.V. Limaye for the appellant. Mr. A.P. Vanarse for the respondent. CORAM : J. H. BHATIA, J. DATE : 9th October, 2009. P.C. 01. Heard the learned Counsel for the parties. 02. The plaintiff-appellant and the father of the defendant-respondent possessed the suit property. They had one more brother. The partition took place among three brothers as per an agreement dated 1st February, 1982. As per the said agreement, western side shop went to the share of Mangala wife of third brother Madhukar and the eastern side shop went to the share of the father of the defendant and the middle portion went to the share of the plaintiff Rajaram. The plaintiff filed Special Civil Suit No. 1315 of 1995 claiming possession of the mezzanine floor, which according to him was wrongfully occupied by the 2 defendant by closing the entrance to the mezzanine floor from the side of the plaintiff. The defendant contended that, the mezzanine floor was never given to the plaintiff. It was the part of the shop, which had come to his share. The trial Court decreed the suit. The defendant preferred Civil Appeal No. 744 of 2002. That appeal was allowed and the judgment and decree passed by the trial Court came to be set aside. Therefore the plaintiff has preferred this Second Appeal. 03. In para 13 of the Judgment, the trial Court has rightly pointed out that, it has to be seen as to whether the said mezzanine floor is the part of the middle part of the godown and the share which has come to the share of the plaintiff. However, in the later part, the trial Court observed that, it is not the case of the defendant anywhere that, the said floor is not the middle portion. In fact, the burden to show that the mezzanine floor is the part of the middle portion should have been on the plaintiff. After perusal of the judgment of the trial Court and the material on record, there is nothing to show that the mezzanine floor is the part of the middle portion which has come to the share of the plaintiff. The Courts below appreciated the evidence and came to different conclusions. It is material to note that, according to the plaintiff, the defendant had closed the entrance to the mezzanine floor from the side of the plaintiff in the year 1984 and the suit was filed in the year 1995. This shows that the plaintiff was keeping 3 quite for the period of about 11 years after the entrance to the mezzanine floor from his side were closed. This conduct also goes against him. After perusal of the judgment of the Courts below as well as the agreement of partition, which is totally silent about the mezzanine floor, I find that it is purely case based on facts and no question of law is involved. 04. Therefore, the appeal stands dismissed. (J. H. BHATIA, J.)