1 SA 1553.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1553 OF 2005 Chendu S/o Sitaram Patil .... APPELLANT VERSUS Jagannath S/o Dnyandev Patil & Oths. .... RESPONDENTS Mr. M.D.Joshi,Advocate for the appellant. Mr. Nandode, Advocate holding for Mr. S.S.Patil, Advocate for Respondent No. 2. CORAM : S.V. GANGAPURWALA, J. DATE : 07/03/2011 ORAL ORDER : 1. Heard the learned counsel for the respective parties. 2. This is Plaintiffs’ Second Appeal. The plaintiff had filed Suit for eviction, exclusive possession and injunction contending that the defendant has illegally constructed a Chowk on the open space owned by the plaintiff. The trial Court decreed the suit directing the defendants to deliver possession of the suit site, so also, clamped injunction. The defendants being aggrieved, preferred Appeal. The first appellate Court partly allowed the Appeal, maintained the decree so far as mandatory injunction is concerned, directing the defendants to remove the said chowk, also held 2 SA 1553.2005 that the plaintiffs and defendants both have right of way through the said portion A, B, C, D no one can obstruct for common beneficial use. The plaintiff being aggrieved by the Judgment of the lower appellate Court, holding the suit property to be of the common beneficial use, has approached this Court in the present Second Appeal. 3. Mr. M.D.Joshi, the learned counsel for the appellant contended that the appellant claims title on the basis of registered instrument i.e. sale deed ( Exh. 45 ). His vendor was the owner of the house along with open space. The trial Court considering the said evidence, has rightly decreed the Suit, but the lower appellate Court has erroneously reversed the finding regarding exclusive ownership of the plaintiff. According to the learned counsel, there is variance between the pleadings and proof on the part of the respondent. According to the learned counsel, the oral evidence of the defendant has not been properly appreciated. There is nothing on record to prove that the vendor of the plaintiff was not the owner of the suit site. When the sale deed recites that the house along with open space is sold, the same should have been believed. There is nothing on record to substantiate the case of the defendant that the suit site is the common court-yard. 4. Per contra, Mr Nandode, the learned counsel for respondent no.2-A submits that the Court below has properly discussed the total 3 SA 1553.2005 evidence on record. Even an enquiry was conducted by the revenue Officers and it was found that the open site is of the common use and enjoyment of all the adjoining house owners. The said decision was also confirmed by the District Inspector of Land Records. The right of way of all the parties was recognized. The chowk was constructed by the defendants. According to the learned counsel, the plaintiff has failed to prove his exclusive ownership of the said open space. 5. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 6. The case is based upon the appreciation of evidence. There is nothing on record to substantiate that the vendor of the plaintiff was the exclusive owner of the open space marked as A,B,C,D. The dimensions of the properties owned and its area was also not proved. The Court has relied upon the revenue record and the enquiry conducted during the formation of the city survey numbers and the open space was held to be for the beneficial use of all the adjoining land owners. It was also observed by the lower appellate Court that House No. 413 is the common family temple and portion marked A, B, C, D is common to house Nos. 412, 414, 413 and 409. The said court yard in dispute is surrounded by all these houses. 4 SA 1553.2005 7. In light of the fact that the view taken by the lower appellate Court is a possible view and the case is based on purely appreciation of evidence, no substantial question of law arises. The Second Appeal is dismissed, however with no order as to costs. 8. In view of dismissal of Second Appeal, the Civil Application does not survive and is also dismissed. [S.V. GANGAPURWALA, J.] knp/SA 1553.2005