1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Second Appeal No. 564 of 2003 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri H.K. Mundhe, Advocate, for the appellant and Shri P.G. Mahalankar, Advocate, holding for Shri M.S. Patil Almalekar, Advocate for Respondent No.1. 2. This is an appeal by original plaintiff in Regular Civil Suit No. 51 of 1978 for a declaration of ownership and perpetual injunction in respect of passege of 75 ft x 10 ft. and open and dilapidated portion of 37 ft. east- west x 21 ft north-south and site of small well admeasuring 9 x 10 ft. The said suit was dismissed by learned Civil Judge, Junior Division, Ambejogai on 31.8.1984 which judgment 2 and decree was confirmed in Regular Civil Appeal No. 329 of 1984 by Additional District Judge, Beed, on 14.9.1998. 3. Both courts below have held that the present suit is barred by principle of res-judicata, in view of judgment and decree passed by Regular Civil Suit No.27 of 1957. Certified copy of the plaint in R.C.S No.27 of 1957 is at Exh.51 and certified copy of the judgment and appellate court is at Exh.37. Both the courts have come to a conclusion that the said suit included the property regarding which suit is filed. As such, present suit is barred by principle of res- judicata. 4. I have gone through the reasons given by the learned trial court in paragraphs 22 and 23 of the judgment and also in paragraph 13 of the judgment of the first appellate court. Record and Proceeding is also received. In my opinion, considering 3 the reasons given by the courts below, it cannot be said that the conclusion that the present suit for declaration of ownership and perpetual injunction is not tenable is wrong. In this case, the right is claimed on the basis that the appellant is owner and possessor of the properties in question, but the same was not accepted even on evidence by both the courts. This appeal therefore does not raise substantial question of law. 5. At this stage, Advocate Shri Mundhe states that the appellant- plaintiff wants to claim right of easement for approaching the common well from his land. However, no declaration is sought in the appeal that the well is a common well. No right of easement is claimed for going to the well. There are no pleadings to that effect. Even the issue regarding easmentary right for approaching the common well is not framed. In the absence of such 4 pleadings and considering the evidence on record, no substantial question of law can be raised in the second appeal. If the appellant genuinely believes that the well is commonly used and there is right of way by easement, he may file separate susit and seek appropriate relief. Second appeal cannot be admitted for want of substantial question of law. Hence, Second appeal stands dismissed Date: 15.06.2009 (P.R.BORKAR, J.) pnd/sa564.03