1 SECOND APPEAL NO.69/2010 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 69 OF 2010 Shri Chandrakant Dhyanu Nalawade & ors. : Appellants versus Dnyaneshwar Namdeo Pawale and ors. : Respondents. Mr.Mohit Jadhav for the Appellants. Ms.S M Dandekar for Respondent No.1. CORAM : R M SAVANT, J. DATE : 02nd August 2010 P.C. 1 The above Second Appeal takes exception to the Judgment and Order dated 30th June 2009 by which the Judgment and Decree dated 2nd November 2007 passed by the Civil Judge, Junior Division, Ghodegoan came to be set aside and thereby the Regular Civil Suit No.5 of 2004 was decreed. The Respondent No.1 herein is the original Plaintiff, who had filed the said suit for permanent injunction against the Defendants i.e. the Appellants abovenamed not to construct a way through the suit property being Gat No.513 owned by the Plaintiff and not to use the same. The parties went to trial. They adduced evidence in support of their respective cases. Court Commissioner was directed to submit his report. The trial Court on the basis of the pleadings as also on the basis of the evidence that was before it and considering the Court Commissioner’s report which inter alia stated that there is no alternate way except the foot way, refused to grant any relief in favour of the Plaintiff and dismissed the said suit. 2 SECOND APPEAL NO.69/2010 2 Aggrieved by the said judgment and order of the trial Court dated 2nd November 2007, the Plaintiff went in appeal and filed Regular Civil Appeal No.783 of 2007. The Lower Appellate Court considered the evidence on record and upon such consideration recorded a finding that it could not be said that the suit road passing through Gat No.513 was constructed pursuant to any award of tender. The Lower Appellate Court also held that it could not be said that the Appellant herein was enjoying the said facility of using the road since long as the Appellant herein had purchased the property in question wherein he has his hot mix plant installed only on 23/10/2000. The Lower Appellate Court also observed that it was for the Defendants to prove that there was no alternative road available to go to their respective properties and that the Defendants had failed to discharge the burden of proving their easementary right over the road passing through the property of the plaintiff. The Lower Appellate Court observed that the trial Court has proceeded on misconception that the Plaintiff has filed the suit only in respect of a new road being constructed whereas it is the case of the Plaintiff that since the Defendants were using the said road for going through the property of the Plaintiff and though it was objected to by the Plaintiff, the Defendants continued to do so resulting in the said suit being filed. The Lower Appellate Court has therefore recorded findings of fact based on the material on record and thereby upset the judgment and order of the trial Court. 3 It is sought to be contended on behalf of the Appellant herein that the police department as well as some others have been using the road in question. It is also sought to be contended that Tahasildar of the area in question had directed the Plaintiff not to obstruct the said persons from using the said road. In my view, the said facts are of no avail, in the light of the finding of the Lower Appellate Court that 3 SECOND APPEAL NO.69/2010 the easementory right if any has not been proved as also that the Defendants had failed to prove that there is no alternate way. In my view, if the Plaintiff’s property is to be utilised for the purpose of the road, in the absence of substantiation of any easementory right, the Defendants cannot do so. 4 Considering the judgment of the Lower Appellate Court and the grounds of appeal, in my view, no substantial question of law is involved. The above Second Appeal is accordingly dismissed. [R.M.SAVANT, J]