1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 135 of 2008 Bhimrao Zadbaji Narad & Ano. Vs. Champabai Namdeorao Deshmukh Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri N. K. Deshpande Adv. for appellant. CORAM: C. L. PANGARKAR J. Dated: 24 th April, 2008. Heard Shri Deshpande the learned counsel for the appellant. This is an appeal by the unsuccessful defendants. Plaintiff had instituted a suit 2 alleging that plaintiff and defendant are neighbours. The defendant demolished his old wall and made a construction. While constructing a new wall it is alleged that the defendant not only made encroachment on the plaintiffs land but even cut the protruding part of the roof of the house of the plaintiffs. The plaintiffs being aggrieved by the same instituted a suit for declaration, injunction and possession. The defendant had resisted the suit contending that he had constructed the wall on the same position on which old wall was standing. There was no encroachment whatsoever. Learned Judge of the trial Court found that defendant had made an encroachment on a portion of 3.6 X 2 ft. He rejected the claim of the plaintiff with regard to the rest of the encroachment and even fixture of the windows in the wall. 3 Being aggrieved by that judgment and decree the defendant preferred an appeal before the District Judge. The District Judge concurred with the finding of the trial Court and dismissed the appeal. Learned counsel for the appellant contended before me that there is a total wrong appreciation of the evidence inasmuch as Courts below have not looked into the report of the Commissioner in proper perspective. He submitted that Courts below have failed to appreciate the reports of the Commissioner and there is no evidence in fact to suggest that plaintiff was the owner of the disputed site. After having gone through the report of the Commissioner as well as 4 judgment of the Courts below I find that there is no perversity in the appreciation of the evidence. It cannot be said that reports of the Commissioner were not properly appreciated by the Courts below. Shri Deshpande learned counsel submits that the plaintiff at the most had a right to discharge the eaves water from the disputed portion but that does not go to show that, that was the land belonging to the plaintiff. Courts below have appreciated the evidence that was tendered. The fact that defendant was in fact required to cut eaves itself suggest that the construction that was made by the defendant was not at the same place at which it was standing else there was no reason to him to have tampered with the roof. In view of this, I do not find that there is any perversity in the appreciation of the evidence. The questions that were raised 5 were questions of fact and there are concurrent findings. I do not see any substantial question of law. Appeal is dismissed. JUDGE svk