1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 287/2006 (Bhimrao Krishnarao Deshmukh Vs. Sheshrao Namdeorao Kapse & 4 ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 3 rd JULY, 2008. Heard Shri Joshi for the appellant, and Shri Jibhkate for the respondents. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the defendants had no right of way through his field. The plaintiff sought an injunction to restrain the defendants from passing through his field along the eastern boundary. The defendants denied the claim of the plaintiff and pleaded that there was a right of way through the field of the plaintiff and one Shri Bhimrao Dhoke and one wheel of the cart passed through the suit way which was created in the plaintiff's field and the other wheel of the cart passed through the field of Bhimrao Dhoke. The defendants pleaded that they had been using the suit way for years together and plaintiff's suit was 2 liable to be dismissed. The trial Court, on an appreciation of the evidence on record, held that the plaintiff had failed in proving that the defendants did not have a right of way through the plaintiff's field. In fact, according to the trial Court, the defendants were using the suit way for more than twenty years as a prescriptive easementary right and the plaintiff was not entitled to object the user of the suit way. The trial Court relied on the oral evidence of the witnesses as also the other documentary evidence including the report of the Court Commissioner, to hold that there was a cart way passing through the field of the plaintiff and one Bhimrao Dhoke. Bhimrao Dhoke was also examined by the defendants and he had also deposed that certain portion of the land of Bhimrao Dhoke and the plaintiff was utilized for passing of the carts. The findings recorded by the trial Court are upheld by the first appellate Court. It is submitted on behalf of the appellant that issues have not been rightly framed by both the Courts. It is submitted that it was necessary for the trial and the appellate Courts to correctly frame the issues on the question as to whether the defendants had proved an easementary right of way, by prescription, through the field of the plaintiff. 3 I have perused the judgments of both the Courts. Though a specific issue as described by the plaintiff was not framed by both the Courts, in effect, both the Courts have considered the matter by keeping the aforesaid issue in mind and have recorded a finding that the defendants had succeeded in proving the right of way and the plaintiff had not succeeded in proving otherwise. Even otherwise, there is nothing on record to show that the plaintiff had raised any objection when the issues were framed by the trial Court. The findings recorded by both the Courts are based on the material evidence on record and do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP