vsa 1 SA618_2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 618 OF 2011 Mahavir Shantaram Shedbale & Anr. ).. Appellants Versus Neminath Annappa Rote & Ors. ).. Respondents Shri Irfan A. Shaikh, i/b. Sachindra Shetye, Advocate for the Appellants. CORAM : A.S. OKA, J. DATE : 7th DECEMBER, 2011. P. C. The submissions were heard on 2nd December, 2011. As the Court time was over, order could not be passed on that date. 2. This is a Second Appeal preferred by the original plaintiffs. The case made out by the appellants is that there is a common wall between the property bearing C.T.S. No. 710-C/1 owned by the appellants and C.T.S. No. 710 Kh./2 owned by the respondents. The case made out by the appellants is that respondents started excavation in their property and therefore, there was an apprehension that the wall may collapse. Therefore, the present suit for injunction was filed by the Appellants for injunction restraining the respondents from making any construction near the common wall and on the said common wall and from causing any sort of damage to the common wall. The suit was decreed by the Trial Court. The decree has been set aside in appeal preferred by the respondents. vsa 2 SA618_2011 3. The learned Counsel appearing for the appellants has taken the Court through the findings recorded by the Trial Court. He submitted that there was no reason for the Appellate Court to take a different view. He submitted that the Appellate Court has completely ignored that the wall was a common wall. He submitted that as the appellants are the joint owners of the common wall along with the respondents, no construction affecting the common wall could have been carried out by the respondents. He submitted that considering the evidence on record, there was no reason to disturb the decree of injunction passed by the Trial Court for protection of the rights of the Appellant as regards the common wall. 4. After having perused the findings recorded by the Appellate Court, I find no error in the view taken by the Appellate Court . The Appellate Court observed that if it was the case of the appellants that encroachment has been committed by the respondents by constructing over a portion of the suit wall, the suit should have been filed for removal of the encroachment. The Appellate Court also noted the fact that the wall was very thick having thickness of 22”. The Appellate Court has made a reference to the witness examined by the appellants who claimed that he was practicing as an Architect. The Appellate Court observed that the witness did not produce notes of inspection and he has not stated anything as to the extent to which the common wall is covered by the respondents. The Appellate Court recorded the finding that he took measurements of the wall, but did not produce the same. He merely stated that the thickness of the wall was about two feet. Therefore, the Appellate Court has drawn an inference that he was not sure about the measurements. As far as the damage caused by the alleged excavation activity is concerned, both the Courts have found that vsa 3 SA618_2011 the work of excavation has been carried out away from the common wall. 5. Perusal of the impugned judgment shows that though it is accepted that the wall is a common wall, but it is held that the Appellants could not establish the act of encroachment and the act of damage. Therefore, the Appellate Court has declined to grant equitable relief of injunction in favour of the appellants. No substantial questions of law arises. Second appeal is accordingly dismissed. (A.S. OKA, J)