Bombay High Court
Maroti Manohar Rodge And Another vs Sangram Bhagwanth Rodge And Others on 10 June, 2025
2025:BHC-AUG:14695 1 SA.35-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH
AT AURANGABAD
SECOND APPEAL NO.35 OF 2023
WITH
CIVIL APPLICATION NO.3224 OF 2023
IN SECOND APPEAL NO.35 OF 2023
1. Maroti s/o Manohar Rodge,
Age: 60 years, Occu: Pension & Agril.,
R/o Devarjan, Tq. Udgir,
At present R/o Udgir, Tq. Udgir, Dist. Latur.
2. Prakash s/o Manohar Rodge,
Age: 55 years, Occu: Agril.,
R/o Devarjan, Tq. Udgir,
Dist. Latur. ... Appellants
(Orig. Plaintiffs)
VERSUS
1. Sangram s/o Bhagwanth Rodge,
Age: 55 years, Occu: Agril.
2. Rajkumar s/o Bhagwanath Rodge,
Age: 51 years, Occu: Agril.
3. Mahesh s/o Bhagwanath Rodge,
Age: 49 years, Occu: Agril.
4. Anteshwar S/o Bhagwanath Rodge,
Age: 47 years, Occu: Agril.
All R/o Devarjan, Tq. Udgir,
Dist. Latur. ... Respondents
(Orig. Defendants)
...
Advocate for Appellants : Mr. B. N. Patil.
Advocate for Respondent Nos.2 to 4 : Mr. V. D. Gunale.
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 10.06.2025
JUDGMENT :
–
1. Heard both sides.
2 SA.35-2023.odt
2. Appellants/original plaintiffs are challenging judgment
and decree dated 13.10.2022 passed by the Ad-hoc District
Judge-1, Udgir in RCA. No.23 of 2019 confirming judgment
and decree dated 15.04.2019 passed by Civil Judge Junior
Division, Udgir in RCS.No.114 of 2006. Their suit for
declaration and perpetual injunction was concurrently
dismissed by the Courts below.
3. Appellants are owners of gram panchayat house No.445,
situated at village Devarjan which is their ancestral property.
The respondents are the adjoining occupants of gram
panchayat house No.440. There is common wall in between
their houses described as “AB” in the plaint and the rough
sketch. On the south side of their house, there is open space.
As the respondents were bent upon to demolish the wall and
they were interfering with the possession of the appellant,
RCS.No.114 of 2006 was filed.
4. Respondents contested suit on various grounds. It is
contended that common wall was not exclusively owned by the
appellants. All the averments are denied by them.
3 SA.35-2023.odt
5. Appellants examined seven (7) witnesses. The Court
Commissioner was appointed for the site inspection and his
report was submitted. Respondents examined two witnesses.
6. Learned counsel Mr. B. N. Patil appearing for the
appellants has taken me through findings recorded by both the
Courts below. It is submitted that there is no serious dispute
about the title and possession of houses of the parties and the
existence of common wall. It is submitted that Trial Court did
not consider the oral evidence and casually passed the
judgment. The averments of the plaint described subject matter
and four boundaries have not been considered. He would press
into service substantial question of law formulated in the
appeal memo as “A” to “D”.
7. Per contra, Mr. V. D. Gunale appearing for the
respondents would submit that there are concurrent findings
on facts and all aspects of the matter are dealt with by the
Courts below. Appellants failed to disclose the dimensions of
the properties, structure and the open space. The report of the
Commissioner and map would be of no avail to the appellants.
The oral evidence has been dealt with very specifically by
Lower Appellate Court. It is urged that appeal does not involve
any substantial question of law.
4 SA.35-2023.odt
8. I have considered rival submissions of the parties and I
have also gone through Record and Proceedings. Record
shows rough sketch, Commissioner’s map as well as material
placed on record. The parties have admitted the title and the
possession of gram panchayat houses and existence of “AB”
wall which is common. The Commissioner’s report at Exh.44
and map are not helpful to decide the controversy. What is
relevant to notice is that the controversy pertains to open space
abetting gram panchayat house No.445 and the common wall.
There is no evidence on record to disclose the dimensions of
the constructed portion and the open space.
9. Though plaint discloses that respondents were likely to
demolish common wall and apprehension of interference with
the possession of the appellants, simultaneously, dispute also
pertains to open space. Counter claim of the appellants was
dismissed and no appeal was preferred against it.
10. Judgment of the Trial Court shows that oral and the
documentary evidence was taken into account in non-suiting
the appellants. I have also carefully perused the judgment of
Lower Appellate Court. The evidence of all the witnesses was
taken into account elaborately in confirming judgment and
5 SA.35-2023.odt
decree of the Trial Court. It is also held that open space in
between houses of the parties was common. It is rightly
recorded by the Lower Appellate Court that appellants could
have taken recourse to the measurement of the disputed site.
Even the evidence led by the respondents was also discarded.
11. Both the Courts below have arrived at concurrent
findings on facts considering material on record. No infirmity
or perversity can be found in the findings. There is no merit in
the submissions of the learned counsel for the appellants.
Present appeal does not involve any substantial question of law
much less as stated in Clause “A” to “D” of memo of appeal.
12. Second appeal is dismissed.
13. There shall be no order as to costs.
14. The record and proceedings be returned to the
concerned Court.
15. Pending civil application disposed of accordingly.
(SHAILESH P. BRAHME, J.)
…
vmk/-
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