1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.648 OF 2010. Akhtari Begum @ Hamedabegum W/o Syed Apser ... Appellant. Versus Laxman S/o Bhagwanrao Anerao and others ... Respondents. ... Mr.Dhananjay Deshpande, advocate for the appellant. ... CORAM : S.V.GANGAPURWALA,J. Date : 25.10.2010. PER COURT 1. This is defendant's Second Appeal. The present Respondent/original plaintiff had filed a suit for mandatory injunction against the 2 defendant to demolish the septic tank and latrine as described in para 1 of the plaint and further injunction from encroaching upon the common lane. The trial Court came to the conclusion that the construction is on the common lane but had dismissed the suit on the ground that the plaintiff was not using the said common lane for way. The plaintiff preferred an appeal. The appellate Court allowed the appeal and decreed the suit. The defendant has assailed the said judgment before this Court. 2. Mr.Deshpande, learned counsel for the appellant strenuously contended that the plaintiff has absolutely no cause of action to file the suit. It has been proved that the plaintiff is not using the said lane. When it is proved that the plaintiff is not using the said lane for any purpose and he has no door opening towards that common lane then in that circumstance, the plaintiff had no cause of action to institute the suit. The learned counsel further contended that the said septic tank and the latrine was constructed by the 3 Municipal Council under the scheme and when the Municipal Council had constructed the same, the plaintiff could not make any grievance about it nor any directions could have been given to the defendant to demolish the same. Mr.Deshpande, further contended that when the plaintiff was not using the common lane, he could not claim any right of easement and no injury is caused to him. 3. With the assistance of the learned counsel, I have gone through the judgments passed by both the Courts. 4. Though the defendant had come with a case that the said latrine is constructed on his open space, but both the Courts on evidence being appreciated came to the conclusion that the said septic tank and latrine is constructed on the common lane. Once it is proved that the said construction is on the common lane then the appellant does not get any right to seek protection of the same. Though it is contended that it is constructed by the Municipal Council in the scheme, the evidence of the Officer of the 4 Municipal Council shows that the scheme was only to the effect that the open latrines are to be closed and to be replaced by flash ones and for that purpose finance was being provided. None the less, the fact remains that it was constructed by the defendant/appellant. 5. Injury would mean a transgression of a legal right. No person would get a right to construct on a common lane. If it is proved that the construction is on the common lane then no question arises of proving any easementary right on the part of the plaintiff. It is submitted by Mr.Deshpande, that the said construction is at the end of the lane, so on that count also no prejudice would be caused to the plaintiff. 6. The only debatable question would be that whether the construction is on the private property of the appellant or a common lane. Once it is found that the construction is on common lane then the same would be against all dictates of law inasmuch as the same is not permissible under any provisions of law. In such 5 circumstances, no error can be found in the judgments passed by the Courts below. The Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa648.10