-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 972 OF 2002 SECOND APPEAL NO. 972 OF 2002 SECOND APPEAL NO. 972 OF 2002 WITH WITH WITH CIVIL APPLICATION NO. 1321 OF 2002 CIVIL APPLICATION NO. 1321 OF 2002 CIVIL APPLICATION NO. 1321 OF 2002 Kondiba Ananda Bhosale .. Appellant. V/s. Dattu Ananda Bhosale .. Respondent. --- Mr. Machhindra A. Patil for the Appellant. Mr.Surel S. Shah for the Respondent. --- CORAM : R. M. SAVANT, J. CORAM : R. M. SAVANT, J. CORAM : R. M. SAVANT, J. DATED : 05TH AUGUST, 2008. DATED : 05TH AUGUST, 2008. DATED : 05TH AUGUST, 2008. P.C.: P.C.: P.C.: 1. This second appeal takes exception to the judgment and decree dated 21.12.2001 passed by the learned IInd Additional District Judge, Pandharpur, whereby the judgment and decree passed by the trial court dated 25.09.2000 was set aside and the suit filed by the respondent herein being regular civil suit no. 229/1994 came to be decreed. 2. It is the case of the plaintiff in the suit that the land bearing gut no. 176/2 at village Dhayati was allotted to him in partition and the land bearing gut no. -: 2 :- 176/3 was allotted to the defendant, who is his brother. The plaintiff and the defendant have joint ownership in gut no.177. Originally the plaintiff’s father owned gut no.176, which came to be partitioned between the three brothers on the death of the father. The land bearing gut no. 176/3 of the defendant lies towards western side of the gut no. 176/2, which came to the plaintiff’s share. It is the case of the plaintiff that a cartway way was kept on the west side to approach the well in gut no. 177, which is towards eastern side of gut no. 176/2. It is further the case of the plaintiff that after partition of gut no. 176, the said cartway was in existence for the use of the plaintiff and his real brother Madhukar, in order to approach the respective lands and the well in gut no. 177. According to the plaintiff, except the said cartway, there is no other way available to the plaintiff to approach the land being gut no.177 and to approach his land in gut no. 176/2 and the well in gut no. 177. Since the defendant obstructed the plaintiff’s way, the said suit was filed by the plaintiff, claiming an injunction against the defendants, restraining and disturbing the plaintiff’s right and way of the disputed cartway. 3. On the other hand, the defendant has disputed the existence of the cartway on the northern side in gut no. -: 3 :- 176. It is the case of the defendant that his lands are irrigated lands in which he has cultivated cash crops and it is in order to damage the said crops of the defendant, that the plaintiff has filed the said suit, claiming the right of cartway. It is further averred by the defendant that the plaintiff has an alternative way to approach the the land and well in gut no. 177. The parties went to trial. The trial court held that the existence of the said cartway is not proved. The trial court was of the view that no farmer will waste his land in road when there is no necessity to keep the road and when a direct approach is possible. The trial court was of the view that the plaintiff has failed to prove the absolute necessity of the cartway in order to claim the right of way on the basis of the easement of necessity. The trial court therefore, dismissed the suit by its judgment and decree dated 25.09.2000. 4. The plaintiff being aggrieved by the said judgment and decree dated 25.09.2000 filed an appeal being regular civil appeal no. 256/ 2000. The appellate court on the basis of the commissioner’s report wherein there is finding of the starting and termination point of the said cartway and on a re-appreciation of the evidence allowed the said appeal and resultantly decreed the suit. The appellate court upheld the right of the plaintiff to -: 4 :- the cart way on the basis of the easement of necessity on the ground that on the partition of the suit land, the gut no. 176 was divided on partition between the brothers resulting in creation of the dominant and sorvient heritage. The trial court was of the view that the said cart way was absolutely necessary for the plaintiff to approach his land in the survey no. 176/2 and his house as well and to approach the well in gut no. 177. 5. The lower appellate court insofar as the alternate way, as it is the case of the defendant that the plaintiff has an alternate way, observed that the said way is over a government drain and therefore, reached the conclusion that there was no alternate way available to the plaintiff except the way claimed by him. Insofar as the case of easement by prescription is concerned, the lower appellate court came to a conclusion that the plaintiff has not satisfied the condition required for establishing the right of way by the easement of prescription. The lower appellate court therefore, set aside the judgment and decree passed by the trial court and decreed the suit. In my view finding recorded by the lower appellate court on the basis of the material that was before it cannot be faulted with. As rightly held by the appellate court the case on the basis -: 5 :- of easement of necessity had arisen on account of the partition of the land being gut no. 176. The alternative way as suggested by the plaintiff over the government drain cannot be termed as alternate way. In my view, challenge raised in the second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. 6. In view of the dismissal of the Second Appeal, civil application no. 1321 of 2002 does not survive and is disposed of as such. ( R.M.SAVANT, J.) .....