1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO.29 of 2011 Smt. Basantibai Ramesh Lakhotia (Dead) through Manish Rameshchandra Lakhotia and others Versus Sudhakarrao Nagorao Deshpande _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri S.S. Joshi, learned Counsel for the appellants, Shri V.T. Deshpande, Advocate for respondent Nos.1(a) to 1(h) & 2. CORAM : R.M.SAVANT, J. DATED : 24.02.2011. By the above Second Appeal, the appellants seek to challenge the judgment and decree dated 30th July, 2010 passed in Regular Civil Appeal No. 167/2004, by which the judgment and decree passed by the Trial Court of dismissal of the suit came to be confirmed. The appellant herein is the original plaintiff who had filed the suit for permanent injunction and mandatory injunction and for possession. The suit was in respect of the property shown by letters A,B,C,D and A, E, F, B in the plaint. It was the case of the plaintiff that the said property was inherited by her from the predecessor-in-title of father-Kunjilal Gandhi. It was her case that after the death of Kunjilal Gandhi, the plaintiff alone became the owner of the suit site. It was further her case that four years prior to the filing of the suit, the plaintiff 2 had reconstructed her house and built five shops facing towards the West and the extreme Northern shop has two doors one on the North and other towards the West. It was her case that defendant No.1 constructed a room on the suit site in the summer of 1984 and rented it out. It was further her case that the Municipal Council had directed defendant No.1 to stop the construction of the said suit shop, but in spite of the directions of the Municipal Council, defendant No.1 proceeded with the construction. It appears that during the pendency of the suit, the plaintiff amended the plaint as according to the plaintiff, defendant No.1 had unauthorisedly sold the said suit shop to defendant No.2. The plaintiff, therefore, sought a decree for mandatory and permanent injunction to remove the construction of the suit site and to hand over possession to her. 2. Defendant No.1 filed his written statement and denied the contentions of the plaintiff including contention as regards the situation of the doors and the ownership of the plaintiff over the courtyard of the suit site. It was contended by defendant No.1 that he was, in fact, the owner of the suit site. He further contended that he has every right to construct on the suit site A, E, F, B. Defendant No.2 also filed his written statement and denied the claims and contentions of the plaintiff. 3. The Trial Court framed the relevant issues and on the consideration of the material on record answered the issues against the plaintiff. The Trial Court recorded a finding that the plaintiff could not prove his title to the suit 3 site. The Trial Court took into consideration the evidence on record adduced by the defendant and came to a conclusion that the defendant was in possession of the suit site. The Trial Court also recorded a finding that the light and air of the plaintiff was not affected and the Trial Court was of the view that in any event since the occupant of the shop in question who was affected was not examined, the plaintiff has not substantiated her case in that regard. The Trial Court, therefore, dismissed the said Regular Civil Suit No.319/1986 filed by the plaintiff. 4. Being aggrieved by the dismissal of the said suit, the plaintiff filed Regular Civil Appeal No.167/2004. The First Appellate Court confirmed the findings of the Trial Court on all the aforesaid aspects. The First Appellate Court, therefore, dismissed the Appeal filed by the plaintiff. 5. Both the Courts below, therefore, have concurrently held against the plaintiff on the aspect of the ownership, the possession of the plaintiff and the easementary right, if any, of the plaintiff not being affected. 6. It is sought to be contended on behalf of the learned Counsel for the appellants that the Courts below have failed to take into consideration the documentary evidence in the form of the sale-deed of the defendant No.1, wherein it is specifically mentioned that the suit property is in possession of the plaintiff. The learned Counsel would contend that the said material piece of evidence has not been taken into consideration by the Courts below. In so far as 4 the said aspect is concerned, the said certified copy of the sale-deed was sought to be produced by the plaintiff at the trial which was refused to be exhibited by the Trial Court, as it was not proved in accordance with the Evidence Act. It appears that the plaintiff thereafter had filed an application to prove the same by leading secondary evidence, which application came to be rejected by the Trial Court, which order was impugned in this Court by way of Writ Petition No.3974/2002. In which Writ Petition, the order of the Trial Court refusing permission to lead secondary evidence was confirmed. In the light of the order of the Trial Court being confirmed by this Court, the said submission of the learned Counsel for the appellants cannot be countenanced in the above Second Appeal. The learned Counsel would then contend that the evidence, which was said to be in favour of the defendants, can be equally said to be in favour of the plaintiff. As indicated above, both the Courts below, on the basis of the material on record, have recorded a concurrent finding on the said aspects mentioned herein above against the plaintiff. Considering the well reasoned judgments of the Courts below, in my view, no substantial question of law arises for consideration in the above Second Appeal, which is accordingly dismissed. JUDGE pma