1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.330/2005. (Gohari w/o Mohammad Sharif Saudgar Vs. Abdul Rashid s/o Alisab Qureshi) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.PV Mandlik, Sr.Counsel for appellant; Mr.SP Shah, Advocate for Respondent Nos. 1 to 4. ________ CORAM : K.U.CHANDIWAL, J. DATE : 23 rd March, 2010. ... 1) Heard. 2) The concurrent findings recorded against the plaintiff are questioned in the Second Appeal. 3) The plaintiff asserts, he has acquired, a right of way, by easement by prescription and easement by necessity. According to the plaintiff, the encroachment by defendants in an area of 14 ft.x 6 ft. by erecting a temporary shed/Kiosk (Tapari), is illegal and the findings are incorrect. 4) Both the Courts had the available record. The Courts have found, there was no proper pleading from the plaintiff about the user of way for loading and unloading of truck. The evidence of plaintiff’s witnesses – 2 Abdul Sattar and Mohemmad Ibrahim was also considered to the extent of ownership of the plaintiff for the property bearing CTS No. 6533. However, the learned Judge, was more concern, which made him to appreciate the evidence of Court Commissioner (Exhibit-85) and the report (Exhiabit-25). The evidence of Court Commissioner illustrate, that there were two ways from southern and western side of the property to the plaintiff. This has been found to be damaging as the plaintiff asserts, having only eastern side entry, which is by way of easement. The findings recorded above, are based on the ground realities, do not warrant interference. Second Appeal is sans merit, it is dismissed. 5) Liberty to resort to appropriate available remedies for removal of encroachment on Government property. (K.U.CHANDIWAL) JUDGE bdv/sa330.05