JUDGMENT : In this second appeal, the unsuccessful plaintiff having suffered from the dismissal of her suit filed against the defendant-respondents in the first appeal filed by the defendant-respondents calls in question the judgment and decree passed by the lower appellate court in reversing the judgment and decree passed by the trial court. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff’s case is that the defendants are her adjoining neighbours and they have their land adjacent to one another. The plaintiff is the owner of the land covered under plot nos. 2008 and 2012 measuring Ac.0.055 dec. and Ac.0.108 dec. respectively. The defendants are the owners of land under plot no. 2015 measuring Ac.0.090 decimals adjoining the land of the plaintiff as above on its east. The plaintiff claims to be having a pucca wall on the eastern extremity of her land which is said to be the wall dividing the land of the plaintiff on one side and defendants on the other stating the wall to be the boundary wall. The plaintiff next claims the said wall to be exclusively owned by her and meant for her exclusive user and it is asserted that the defendants have no manner of right and interest over the said boundary wall. 4. It is alleged that the defendants unauthorizedly constructed their latrine on the side of the wall towards and over their land encroaching the compound wall of the plaintiff and have dug a pucca soak-pit in connecting the latrine. It is stated that the soak-pit touches the boundary wall of the plaintiff. The next allegation is that the defendants have unlawfully excavated a pit adjoining boundary wall weakening the lateral support of the boundary wall giving rise to the development of cracks over there, further resulting an apprehension that at any time the boundary wall may get raised to the ground. It is alleged that because of such unauthorized and mischievous construction of the soak-pit of the latrine, the foul water from the soak pit, is leaking and percolating to the land of the plaintiff causing nuisance and to the annoyance of the plaintiff, which is also hazardous to the sanitation. It is alleged that because of such unauthorized and mischievous construction of the soak-pit of the latrine, the foul water from the soak pit, is leaking and percolating to the land of the plaintiff causing nuisance and to the annoyance of the plaintiff, which is also hazardous to the sanitation. The pit so done by the defendants is said to be causing water logging and thus it has also been a nuisance. It is further alleged that the defendants having filled up sand and earth adjoining the boundary wall, the rain and drain water are over-flowing from the premises of the defendants to the land of the plaintiff. 5. With the aforesaid pleadings, the plaintiff claims the following reliefs:- “7. (a) the defendants may be directed to remove the unauthorized construction of the latrine encroaching upon the compound wall within a specific time fixed by the court; in default, the court may remove the plinth and superstructure of the latrine constructed over the compound wall and restore the common wall to its original position as existed before encroachment and illegal structure; (b) mandatory injunction may be issued against the defendants to remove the soak-pit and the trench excavated illegally adjacent to the compound wall within time stipulated by the court; in default it may be executed through the court.” 6. The defendants while traversing the plaint averments from the beginning denied the claim of the plaintiff that the boundary wall exclusively belongs to him. It is stated that such boundary wall was in existence since long being constructed by Balaram Mishra, the then Marfatdar of defendant no. 1 about 50 years prior to the institution of the suit and further it is claimed to be standing very much over the defendants’ land under plot no. 2015. They further state that the latrine and soak-pit have also been constructed long prior to the suit way back in the year 1940 and are not at all the new constructions as alleged. The other allegations with regard to the flow of water from the soak-pit to the land of the plaintiff and as regards staking of sand adjoining their boundary wall on their side are denied. It is stated that being motivated and bearing personal grudge, the suit has been filed to cause undue harassment. 7. The other allegations with regard to the flow of water from the soak-pit to the land of the plaintiff and as regards staking of sand adjoining their boundary wall on their side are denied. It is stated that being motivated and bearing personal grudge, the suit has been filed to cause undue harassment. 7. The trial court faced with such rival pleadings framed all together 12 issues and has rightly taken up issue no. 7 for decision at first. Its felt apt and proper to reproduce the same with necessary correction. “Whether the masionary boundary wall stand on the land under plot nos.2008 and 2009 belonging to the plaintiff or on the land under plot no. 2015?” Upon discussion of evidence as available on record and taking into account the report of the Commissioner, the finding has been rendered that the wall in question is standing over the land of the plaintiff. Thereafter, the next issue regarding the construction of the latrine and encroachment by the defendants has been taken up for answer. It has also been recorded in favour of the plaintiff. These above two findings being answered in favour of the plaintiff, she had been favoured with the decree of mandatory injunction directing the defendants to remove the soak-pit in question to a distant place, holding the prayer no. 7(a) to be no more maintainable in view of the evidence of P.W. 3, the husband of the plaintiff in clear and categorical terms. 8. Being aggrieved by such judgment and decree, the defendants had carried the first appeal under Section 96 of the Code of Civil Procedure. The lower appellate court upon hearing has set aside the finding of the trial court and accordingly, the plaintiff having been non-suited and declined with the grant of any of the reliefs as prayed for, the present second appeal under Section 100 of the Code has come to be filed by her. 9. The appeal has been admitted on the following substantial questions of law:- “i. Whether the lower appellate court has committed illegality in not considering the material documents exhibited in the case in coming to its conclusion and in allowing the appeal filed by the defendant-respondents? ii. Whether the judgment of the lower appellate court can be sustained since the cross-objection filed by the plaintiff-appellant was not considered by the lower appellate court?” 10. ii. Whether the judgment of the lower appellate court can be sustained since the cross-objection filed by the plaintiff-appellant was not considered by the lower appellate court?” 10. Learned counsel for the appellant submits that the lower appellate court has completely misconstrued and misread Exts. 1 and 2, the two sale deeds one by which the plaintiff’s vendor had purchased the suit land in the year 1951 and the other one by which the predecessor-in-interest of the vendors of the plaintiff had purchased the land in the year 1978 and the finding rendered by the lower appellate court that the plaintiff has failed to prove that boundary wall is in existence on her land is thus wholly untenable on the face of the available evidence on record both oral and documentary. According to him, said appreciation of evidence by the lower appellate court is wholly perverse and without any justifiable reason, the findings of the trial court recorded upon just and proper appreciation of evidence and with reasons have been set aside which is unsustainable. In further highlighting the submission, he has drawn the attention of this Court to the recitals of the sale deed Ext. 2 in contending that since the vendors of the plaintiff had constructed the wall as it has been clearly recited in the sale deed Ext. 2 that such wall having been over the purchased land had been so described to have been sold to the plaintiff, the irresistible conclusion stands that it is the wall of the plaintiff. His next contention is that the lower appellate court has committed error on record by going to say that there is no evidence on record that the plaintiff purchased the land with the boundary wall then existing over the same from her vendors. He further contends that the report of the Commissioner has not been given its due weightage by the lower appellate court and without assigning good reasons, the same has been ignored. Therefore, he contends that the lower appellate court has fallen in grave error in finally holding that the plaintiff has not been able to establish the encroachment and that no evidence is forthcoming for a conclusion that the soak-pit constructed on their own land causes any damage to the plaintiff and also that there remains no evidence to say that there was leakage of water through the soak-pit to the plaintiff’s land. Placing the memo of citation with the copies of the judgments, learned counsel for the appellant has placed reliance upon the following decisions:- 1. AIR 2015 SC 2967 : Kirpal Kaur vs. Jitender Pal Singh and others; 2. AIR 2015 (NOC) 1151 (GAU.): Chotu Devi Yadab vs. Jamuna Prasad Koiri; 3. AIR 1968 SC 466 : Smt.Sonawati and others vs. Sri Ram and another; 4. AIR 2014 SC 2912 : Easwari vs. Parvathi and others; 5. 2010 (II) CLR (SC) 60: Dinesh Kumar vs. Yusuf Ali; and 6. 2010 (I) CLR (SC) 131; Dubaria vs. Har Prasad and another. He further contends that in view of the cross-objection filed by the plaintiff-appellant in that first appeal, the lower appellate court was under legal obligation to dispose of the same along with the appeal and as it has not been so done, the judgment and decree passed by the lower appellate court stand vitiated. 11. Learned counsel for the respondents in reply contends all in favour of the findings recorded by the lower appellate court placing further that the same are based on just and proper appreciation of evidence. According to him, gross mistake that had been committed by the trial court by ignoring and without properly appreciating recitals of the sale deed Ext. 1 and taking into account their true import, those thereby been set at right by the lower appellate court. So it is submitted that the lower appellate court has discharged its duty as the final court of fact perfectly well within its competence and as is legally duty bound. According to him, the lower appellate court has applied its mind independently to the facts and circumstances as those reveal from the rival pleadings and has appreciated the evidence properly without being influenced by finding of the trial court in any manner being the final court of fact and thus it having taken a view that the plaintiff has failed to prove the case of alleged encroachment by the defendants and other allegations disentitling her to the relief as it had been so granted by the trial court, this Court in seision of second appeal is not to interfere with the same unless it is shown that the said outcome is on account of perverse appreciation of evidence. Taking pain, he has placed the relevant paras of the judgment of the trial court as also the lower appellate court in explaining as to what mistakes had been committed by the trial court and how those have been rightly rectified by the lower appellate court. He next contends that the plaintiff having not filed any cross objection before the lower appellate court in consonance with the order 41 rule 22 of the Code, the submission of the learned counsel of the appellant on that score is misconceived. He, in the alternative submits that if the first substantial question of law is answered in favour of the respondents, then even if it is said that the lower appellate court has not considered the cross-objection filed by the plaintiff, the same is of no such legal consequence as it would have no impact on the ultimate result of dismissal of the suit which is wholly dependent on the answer to the first substantial question of law as that decided the fate of the suit. 12. Going to address the rival submission in ultimately recording the answer to the substantial questions of law, let us see the very foundation of the case of the plaintiff as laid in the plaint in the relevant para-2. It is stated therein that there stands masonary boundary wall erected on the plaintiff’s land under plot nos. 2008 and 2012 and that exclusively belongs to her. This is all about the claim of the plaintiff that the wall is owned by her. It has not been pleaded as to when it had been constructed and as to who had erected the same, however it is seen that later the plaintiff has made the development in the case that the wall had been constructed by her vendors. They had sold land with that boundary wall. So now comes the importance of the recitals of the sale deeds by which the plaintiff purchased the land as also the earlier sale deed which have been the foundation of the claim of the plaintiff which have been proved by the plaintiff and marked as Ext. 1 and 2, the recitals of which are binding on the plaintiff and upon those she also relies. It is stated in the sale deed dated 8.9.51 Ext. 1 and 2, the recitals of which are binding on the plaintiff and upon those she also relies. It is stated in the sale deed dated 8.9.51 Ext. 2, that the Khaprial roofed house standing over the walls made of brick comprising of one room has been sold. Exactly similar recital is there in Ext. 1. The Oriya verbatim is “ETA RA PUCCA KANTHA O TAHIN UPARE THIBA KAI CHAPAR GHARA TINI BAKHARA MADHYARU Eka Bakhara O TAHIN UPARE LAGI THIBA KABAT CHOUKATHA ADI………….” In both these sale deeds it has further been recited that over the said wall of the house both sides can put the rafter of the roof of their respective house. So, undoubtedly this wall is the dividing wall between one room of the Khaprial roofed house on one side sold and two other rooms on the other side remaining unsold. This by no stretch of imagination can be said to be the boundary wall as is understood in common parlance between the land of plaintiff and defendants. So the plaintiff’s case derives no support from Exts. 1 and 2 in so far as her claim of exclusive ownership over the wall is concerned. Thus, I find that this very important aspect had been lost sight of by the trial court and that having to some extent been noticed by the lower appellate court although wholly not understanding and appreciating the true import of those, the lower appellate court has thus ultimately is found to have committed no wrong in setting aside the finding of the trial court on that important factual aspect, more so when the oral evidence which in view of above are not only inadmissible but also on the point are not that clinching. The Commissioner is found to have not even measured the land under plot nos. 2008 and 2012 in arriving at his conclusion. Thus the answer to first substantial question of law as per the aforesaid discussion and reasons runs against the case of the plaintiff. The above being the position, the wall which is said to be the boundary wall by the plaintiff stands attached with the ordinary presumption that it is the party-wall which jointly belong to the parties. Thus the answer to first substantial question of law as per the aforesaid discussion and reasons runs against the case of the plaintiff. The above being the position, the wall which is said to be the boundary wall by the plaintiff stands attached with the ordinary presumption that it is the party-wall which jointly belong to the parties. It is not the case here that the defendants have made any encroachment of plaintiff’s land beyond the said wall, thus co-ownership of the wall being implied that each co-owner should have the reasonable user of the wall owned in common and so long as each co-owner uses the wall reasonably without interfering with the enjoyment of that wall by the other party or without doing anything which would damage the wall, there can be no complainant. In this case, the plaintiff has not made out a case in the light of the aforesaid so as to be entitled to a decree for injunction. There is no evidence on record as regards any damage having been done to the wall except stating about encroachment which on the face of the finding already recorded has not been proved. Moreover it has not been proved that by any such unreasonable use of the wall there has been interference with the enjoyment of the wall by the plaintiff. So, all that the defendants even if is said to have done can be said to be in the direction of mere user of their rights reasonably as co-owners. I have carefully gone through all the decisions cited by the learned counsel for the appellants as mentioned at para-8. However, in view of aforesaid discussion I do not find that those decisions in any come to the aid of the appellant in answering this substantial question of law in her favour. Therefore, in my considered view, the plaintiff is not entitled to the reliefs claimed in the suit and the suit as laid has been rightly dismissed by the lower appellate court. 13. Coming to the second substantial question of law although it is seen that the lower appellate court has not considered the cross-objection, yet the plaintiff when is found liable to be non-suited, the said non-consideration of cross-objection hardly matters as its fate stood sealed thereby. 13. Coming to the second substantial question of law although it is seen that the lower appellate court has not considered the cross-objection, yet the plaintiff when is found liable to be non-suited, the said non-consideration of cross-objection hardly matters as its fate stood sealed thereby. In view of the aforesaid, the alternative submission of the learned counsel for the respondents on the face of my answer to the first substantial question of law against the plaintiff has no force and thus the second substantial question of law as formed does no more survive for consideration for being answered. 14. In the result, the appeal stands dismissed. However, in the facts and circumstances of the case, the parties are to bear their respective cost of litigation throughout.