-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 876 OF 2005 Ganpat Shankar Jedhe : Appellants v/s Sitaram Shivram Jedhe & ors. : Respondents R.B. Parab for appellants R.V. Govilkar for respondent nos. 1 to 7,10 Coram :R.M. Savant, J Date:15.7.2008 P.C. 1. The above second appeal arises out of the judgment and decree dt.17.9.2004 passed by the Learned Joint District Judge Ratnagiri. 2. The appellant herein and the original plaintiff no.2 who had filed regular civil suit no.21 of 1989 for injunction against the respondents herein in respect of the property bearing survey no. 1/5 admeasuring 9R situated at Lanja, District Ratnagiri. 3. The appellant and the respondents trace their lineage to one Baloji Raoji, the said property has been inherited by the parties from their forefathers. On the ground that the respondents/defendants tried to build a wall and fix the gate thereby obstructing way of the plaintiffs for going to the western road, as the said way is only way available to the plaintiffs -2- to approach to the western side road, the plaintiffs filed the suit for injunction. The trial court dismissed the suit on the ground that the parties are in separate possession of the respective portions since long and by mutual understanding though the formal partition has not taken place. As per the commissioner’s report in the said suit the defendants were in possession of the portion which is to the north west and the plaintiffs were in possession of the portion which is on the south west side. It is observed that the plaintiffs wanted enjoyment of the court yard which is to the west of the house of the defendants. 4. Both the courts below observed that there is a direct approach to the plaintiffs to the western road from the passage which is to the south of the cattle shed of the defendant no.1 to 5 and therefore there was absolutely no reason for the plaintiffs to go through the court yard which is to the west of the house of the defendants and to the north of the cattle shed of the defendants. The Lower Appellate Court has gone to the extent of stating that the claim of the plaintiffs appears to be malafide. 5. As indicated above both the courts below -3- recorded a finding of fact that the plaintiffs have a direct approach road to the western road through the passage which is to the south of the cattle shed and there is absolutely no reason for the plaintiffs to go through the court yard which is in the portion of the defendants. 6. In my view the challenge raised in the second appeal does not involve any substantial question of law. Appeal is accordingly dismissed. In view of the dismissal of the appeal C.A.does not survive and is disposed of as such. (R.M.Savant,J)