1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 94/2010 (Uttamrao Gopal Chaudhary VERSUS Madhukar Gopal Chaudhary) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri M.L. Somalwar, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 1, 2010 . Heard. The appellant is the original plaintiff. A suit was filed by the plaintiff for a permanent and mandatory injunction. According to the plaintiff, there was a door ‘X’ and two windows ‘Y1’ and ‘Y2’ in the wall marked as ‘BC’. According to the plaintiff, the western side towards the door ‘X’ was used by the plaintiff to approach the main road. The house of the defendant, the brother of the plaintiff, was towards the western side of the house of the plaintiff and was marked by letters ‘EFGH’. According to the plaintiff, though the defendant was having another door at ‘X1’, he had constructed a wall ‘EK’ fixing a door ‘X3’ thereby closing plaintiff’s passage for ingress and egress. According to the plaintiff, the defendant was also causing damage to plaintiffs 2 wall ‘CD’. The plaintiff, therefore, claimed permanent and mandatory injunction. By the written statement, the defendant resisted the claim of the plaintiff and pleaded that there was a vacant site towards the western side of ‘BC’ wall as alleged by the plaintiff but, that vacant site was owned by the defendant. The defendant denied the alleged use by the plaintiff through ‘X’ door since last 27 years. According to the defendant, the ‘EK’ wall showed in the plaint map was already existing and in fact the plaintiff had subsequently opened one door and wanted to show his use and occupation from the western side. The defendant sought for the dismissal of the suit. Though the defendant did not enter into the witness box to prove his case and the plaintiff had tendered evidence, both the Courts, on an appreciation of the evidence tendered by the plaintiff, held that the plaintiff had not succeeded in proving that there was a door and windows on the western side wall of his house since 27 years. The Courts held that the plaintiff failed to prove that the plaintiff was using the said door continuously without interruption for a period of 27 years for ingress and egress. The Courts held that the defendant had also failed to prove that the plaintiff had recently affixed the door and windows in the western 3 side wall of his house. The Courts held that even according to the plaint map, the plaintiff had another door for egress and ingress. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material evidence on record. Merely because the defendant had failed to enter the witness box and had also not examined any witness, it could not be said that the case of the plaintiff was proved as the plaintiff was required to prove his case by producing cogent and convincing evidence. Since the findings recorded by both the Courts do not give rise to any substantial question of law, the second appeal fails and is dismissed with no order as to costs. JUDGE APTE