1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 56 OF 2008 Dasharath Dnyanoba Barai vs. Shivaji Santoshrao Barai Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 07, 2008. Shri Markandeywar, learned counsel for the appellant has filed a pursis along with certified copy of a map mentioning that it is certified copy of Exh. 18. According to him, between house No. 1060 of plaintiff – respondent and house No.1059 of appellant – defendant, there is no lane shown as observed by the trial Court in para 17 of its judgment. He further states that the appellant – defendant is not pressing the case of common wall separating the houses of plaintiff and defendant. According to him, though in plaint, extent of encroachment is shown only 4', plaint map shows encroachment of shed on entire 8' wide portion. He, therefore, contends that this is a fit case in which the Commissioner ought to have been appointed to find out the correct position. 2 The perusal of written statement of present defendant shows that he contended that house of plaintiff and defendants were separated by common wall and on South side of house of plaintiff, there was an open space of 8' width belonging to appellant – defendant. As already stated above, the story of common wall separating two houses is now given up. It is apparent that both the Courts have after appreciation of oral evidence as also documentary evidence found that 8' open space was meant for common use by both the brothers. Thus, erection of shed in that common space by present appellant – defendant is not permissible and present appellant has been directed to remove that tin shed. In these circumstances, extent of tin shed itself is not very relevant. Hence, I do not find any need to appoint Commissioner. No substantial question of law arises in this Second Appeal. It is dismissed. No order as to costs. JUDGE *GS.