1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL No. 738 OF 2009 Mahadeo @ Mahadev Yeshwant Patil & others ... Appellants. Versus The Collector, Osmanabad & Others. ... Respondents. -------- Shri. A.M. Gaddime, Advocate h/f for V.D.Gunale, Advocate for the appellant. Smt. V.A. More, AGP for respondent Nos. 1 & 2. -------- CORAM: V.R.KINGAONKAR, J. DATE: 5th DECEMBER, 2009 PER COURT : 1) Heard. 2) The appellants are original plaintiffs. they had filed suit for injunction alleging that the defendants were unlawfully using their lands and were trying to create a new cart way through the adjacent agricultural lands. The appellants 2 are holders of several lands which have been described by them, and alleged that through their lands and other lands way has been created by the defendants. The Trial Court however held that the plaintiffs (Appellants) failed to prove that the defendants were creating a new cart way through the suit lands. Consequently, the suit was dismissed. The First Appellate Court confirmed the judgment of the Trial Court. 3) It is pertinent to note that the plaintiffs witness PW Mahadeo categorically admitted that there was a common way available to him and the defendant Nos. 3 to 11 through their lands bearing Gut Nos. 12,15,17 and 18. It was contended by the appellants that the user of the cart way is illegal, and has not been shown in the village map (Exh. 93). The Courts below, in view of admission of PW Mahadeo held that such omission is no much importance. Findings of facts as recorded by the Trial Court do not appear to be perverse. The Apex Court in “ Gurudev Kaur and others V/s. Kaki and others “ (AIR 2006 SUPREME 3 COURT 1975) held that even if the findings are grossly incorrect, yet the Second Appeal cannot be entertained Under Section 100 of the Civil Procedure Code. 4) In this view of the matter, Second Appeal is dismissed, with no orders as to costs. (V.R. KINGAONKAR, J.) SDM/SA738.09 4