: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.247 OF 2009 Mehboob Rasul Nejkar .. Appellant V/s. Nanasaheb Khutub Nejkar .. Respondent ..... Mr. Surel Shah for the appellant None for the respondent ..... CORAM : R.Y. GANOO, J. DATE : 19TH JUNE, 2009. P.C. : 1. The appellant wanted a decree in his favour to the extent that the suit right of way is acquired by him as and by way of easement of necessity or by prescription. He, therefore, filed Regular Civil Suit No.9 of 2004 in the Court of learned Joint Civil Judge, Junior Division, Ichalkaranji (hereinafter referred to as the learned trial Judge). The learned trial granted relief in favour of the appellant in as much as the appellant was held to have right of way of 10 ft more particularly set out in the judgment and decree dated 31st March, 2005. This judgment and decree was challenged before the learned District : 2 : Judge-1, Ichalkaranji by filing Regular Civil Appeal No.272 of 2005. The learned District Judge-1, Ichalkaranji by judgment and decree dated 20th April, 2009 allowed the appeal filed by the respondent (original defendant) and set aside the judgment and decree delivered by the learned trial Judge. 2. I have heard learned advocate Mr. Surel Shah in support of the second appeal. The learned District Judge has rejected the contention of the appellant that he has right of way by prescription by observing in paragraph 30 that there is no specific averment made in the plaint so as to say that the appellant was enjoying the suit right of way as an easement and as of right. With the assistance of learned advocate Mr. Shah, I have perused the text of the judgment and I am inclined to accept the view taken by the learned District Judge. It is well settled that if person is claiming easementary right of way by prescription in a suit, there has to be a specific averment so as to say that he has been enjoying the suit right of way as an easement and as of right i.e. As per the requirement of Indian Easement Act. In the absence of such averment, there is no question of appellant securing : 3 : right of way by way of prescription, to that extent the finding given by learned District Judge will have to be accepted. 3. It was alternatively pleaded before this Court that the appellant is enjoyinig right of way by necessity and had made out a case accordingly. I have perused the plaint. No such specific averment is found. It is claimed that the suit road is required to be used to approach main road. In my view, for claiming right of way of easement of necessity, there has to be specific pleadings to say that it is absolutely necessary for a particular person to use the suit road failing which he would not be able to enjoy his property. In the absence of clear averment as regards easement of necessity, the claim put up by the appellant cannot be accepted. Even otherwise there was no specific prayer that if the appellant looses his stand as regards right of way by prescription the appellant s case as regards right of way by necessity should be considered. 4. Apart from the above discussion, if a person has been using a particular way as and by way of easement : 4 : of prescription then there is no question of he using the same way as and by way of necessity. In my view, if a person uses right of way of by prescription, there is no question he pleading easement of necessity for the same way. 5. Before this Court, it was also argued that between the appellant and the respondent an agreement was entered into dated 27th January, 2008 by which right of way is conferred upon the appellant and that the appellant wanted the learned District Judge to allow him to lead evidence in that behalf to bring out new facts on record and then deliver the judgment. If what is contended before this Court that a right of way is granted as the agreement dated 27th January, 2008, the dispute between the appellant and respondent has come to an end and this agreement by itself would give a right to the appellant. Hence, there was no question the appellant moving the Court for seeking further reliefs in the matter. With the aforesaid discussion, I hold that the appellant failed to place before this Court substantial question of law for Courts consideration and hence the appeal required to be dismissed. Hence, the following order. : 5 : ORDER . Second Appeal is dismissed There shall be no order as to costs. . In view of this, Civil Application No.871 of 2009 is dismissed with no order as to costs. 6. Learned advocate Mr. Shah by producing the text of the order dated 20st April, 2009 passed by learned District Judge wanted to submit that the appellant has been permitted to use the disputed way till 22nd June, 2009 and that he is prevented from bringing the trucks on the suit way. The learned advocate Mr. Shah prayed for some time to enable him to do the needful in the matter, arrangement which was continuing as of 21st April, 2009 should be continued. 7. By way of indulgence, the appellant is being granted facility to continue the use of the suit way as was done by him pursuant to the order dated 21st April, 2009. Hence, the appellant is permitted to use the suit way as per order dated 21st April, 2009 till 14th August, 2009. (R.Y. Ganoo, J.)