Bombay High Court
Laljibhai Karsan Solanki vs Shri.Kharva Devaji Pancha And Others on 18 September, 2019
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
Sr. No. 903 SA 517 of 2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 517 OF 2019
WITH
CIVIL APPLICATION NO. 1281 OF 2019
Laljibhai Karsan Solanki ... Appellant
Vs
Shri. Kharva Devaji Solanki & Anr. ... Respondents
Mr. Karan S. Thorat, Advocate for the Appellant. None for the Respondents.
CORAM : SANDEEP K. SHINDE J.
DATE : September 18th, 2019 P.C. :
1. Heard learned counsel for the Appellant.
2. Appellant- plaintif instituted Regular Civil Suit No. 9 of 2007 in the Court of Civil Judge, Junior Division, Diu against the respondents-defendants. He sought following declarations;
(a) to declare the eastern wall of PTA No. 43/7 of village Ghoghla as independent and individual property of plaintif;
(b) To restrain the defendant to interfere with Prachi Potdar 1/4 ::: Uploaded on - 19/09/2019 ::: Downloaded on - 20/09/2019 00:43:58 ::: Sr. No. 903 SA 517 of 2019.odt plaintifs construction work;
(c) To direct the defendant to remove the illegal encroachment by inserting the wooden beam in plaintifs eastern wall and any other legal reliefs and cost of the suit.
3. Both the Courts below dismissed the suit and it is against the decree passed in Regular Civil Appeal No. 1 of 2011 passed by the Principal District Judge, Diu, the plaintif has preferred this appeal.
4. It is plaintiffs case that he is the owner of the house bearing PTS No. 43/7 and the defendant who is his neighbour is in possession of the house bearing PTS No. 43/8, which is on the eastern side of the plaintiffs house. The plaintif alleged that the defendant started renovating and reconstructing his house, without permission from the local authority and further illegally mounted beams on the eastern side wall of his house. Apprehending damage of his house, the plaintif instituted the suit and sought decree as aforesaid.
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5. The defendant resisted the suit contending that the eastern side wall on which the beams are mounted by him is a common wall and therefore the plaintif has no right to prevent the defendant from using and/or mounting the beams on this common wall.
6. The evidence on record shows that the defendant had examined Civil Engineer Shri. Mahendi, the Municipal Engineer working with Diu Municipal Council. This witness had produced original approved construction plan of plaintiffs house at Exhibit 50. This plan shows the wall on the eastern side of his house is the common wall. The defendant had produced on record Gift Deed Exhibit 23. Vide this Gift Deed, father of the plaintif gifted house no. PTS 43/7 to the plaintif. This Gift Deed also shows that there is a common wall on the eastern side of the plaintiffs house. Along with Gift Deed, the sketch of the house was also produced at Exhibit 23. Shri. D.W.3 was examined to prove the Gift Deed at Exhibit 23.
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7. Thus, taking into consideration the evidence of Shri. Mahendi, Municipal Engineer and the Gift Deed Exhibit 23, both the Courts concluded that there exist a common wall between the house of the plaintif and the defendant. In view of the evidence on record, both the Courts declined the decree of perpetual injunction, as sought by the plaintif.
8. After going through the evidence on record, in my view, the fnding recorded by the Courts below is consistent with the evidence on record. The appeal therefore does not give rise to any substantial question of law. Appeal is dismissed. Civil Application is also disposed of accordingly.
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