1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.160 OF 2009 Shri.Vitthal Vishnu Patil .. Appellant V/s Shri.Bapurao Tatoba Mokashi & Ors. .. Respondents Ms.Preeti B.Walimbe for the Appellant. Mr.P.M.Arjunwadkar for Respondent Nos.1 to 4. CORAM : R.G.KETKAR, J. DATE : 15th June, 2010 P.C. : 1. This appeal is directed against the Judgment and Decree dated 7th August, 2008 passed by the learned District Judge, Islampur, in Regular civil Appeal No. 994 of 1999 arising from the Judgment and Decree dated 6th October, 1999 passed by the learned Civil Judge, Junior Division, Islampur in Regular Civil Suit No.359 of 1993. By these judgments, the Courts below dismissed the suit instituted by the Appellant for declaration and injunction. 2. The Appellant instituted suit contending inter-alia that he is the owner of suit property as more particularly described in paragraph No.1A of the Plaint on the basis of registered sale deed dated 15th May, 1981. In pursuance of the sale deed he is in possession of the said property. According to him, the suit property as more particularly described in paragraph No.1B of the Plaint is towards the northern side of the property 1A and is a road. It is his case that he alongwith other villagers are using the property 1B as the road for the last more than 100 years and he has acquired easementary rights over the same. It is his further case that in the year 1980 the city survey was carried out where the original Defendant 2 No.1 illegally got his name entered in respect of the property 1B. Taking undue advantage of the said fact, the Respondent No.1 started obstructing the appellant from using the property 1B for approaching his property. In this view of the matter, the Appellant instituted suit for declaration that the property 1B be declared as road and for injunction restraining the Respondent No.1 from obstructing and interfering use of the property 1B as road. 3. Respondent No.1 filed written statement and resisted the claim. According to him considering the description given by the appellant in the plaint wherein it is mentioned that to the northern side of the property 1A is the property of Kharade, coupled with the description given in paragraph No.3, it is abundantly clear that no such road is in existence towards the northern side of the appellants property. 4. The parties led evidence in support of their case and on the basis of material on record, the learned trial Judge dismissed the suit. It was held that the appellant failed to prove that the property 1B is the road and that he has easement of necessity over the property 1B. The appellant challenged this decree by filing the appeal which was also dismissed on 7h August, 2008. It is against this two judgments, the present Second Appeal is preferred. 5. Heard Mrs.Walibme, learned counsel for the appellant and Mr.Arjunwadkar, learned counsel for the Respondent No.1 to 4. Mrs.Walimbe submitted that the Courts below have committed serious errors. She submitted that the witnesses examined on behalf of the Respondent No.1 clearly support the case of the appellant that the property 1B is used as road and consequently the impugned judgments suffer from serious errors. On the other hand, the learned counsel for Respondent No.1 submitted that perusal of the testimony of the appellant/plaintiff would indicate that he has alternate road from southern side and considering the 3 averments made in the plaint and the evidence on record, it cannot be said that the city survey No.427 is the road. 6. After hearing learned counsel for the parties and considering the material on record, I do not find that the appellant has established the existence of road viz.property 1B towards the northern side of the property 1A. Considering the case made out in the plaint and in particular description of the properties in paragraphs 1A and 1B coupled with paragraph 3 of the plaint, the Courts below rightly came to the conclusion that the appellant did not establish the existence of road on the northern side of the property. The Courts below have recorded the concurrent finding of facts. The said finding is based on material on record. In my opinion, no substantial question of law arises in this appeal. Hence, Second Appeal is dismissed summarily. (R.G.KETKAR, J.)