1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 382 OF 2004 WITH CIVIL APPLICATION NO. 351 OF 2004 Bhimashankar D. Hulle........Appellant versus Shivbai S. Hulle & ors........ Respondents. Mr. Girish Godbole with Nitin Muley adv. for the Appellant Mr. K.Y. Mandlik adv. for the respondents. 3 to 5,7 to 9 & 11. CORAM: RANJIT V. MORE, J. DATED : 03rd DECEMBER,2008. P.C.: 1. Heard Mr. Muley learned counsel for the appellant and Mr. Mandlik for the respondents. The appellant is original plaintiff. His suit for perpetual injunction, restraining the respondent from using or claiming any right from southern side of property Gat no. 210 is decreed by the trial court. However this decree came to be reversed by the lower appellate court in an appeal filed by the respondent. The lower appellate court held that the appellant/plaintiff could not prove that the respondent have no right to use southern side of Gat No.210. The lower appellate court recorded this finding relying upon the appellant's admission in cross examination. 2 2. Mr. Muley submitted that the defendant themselves in written statement stated that the road towards northern side of the Gat No.210 was closed by the plaintiff and therefore they started using the access towards southern side of Gat no.210 and in view of the statement in the written statement, the plaintiff is entitled to have injunction as claimed. However, the observations of the lower appellate court in para 26 observed that “in cross examination the plaintiff has admitted that towards northern side of his land bearing Gat no.210 there is no road for user”. In para 27 of the impugned judgment and order, the finding is recorded that the respondent/defendant have established the fact regarding existence of disputed suit way and the same is being used by them since long. In that view of the matter, I am of the view that second appeal does not involve any question of law much less substantial question of law. Appeal is therefore dismissed. 3. In view of the dismissal of the second appeal, civil application does not survive and the same is also dismissed. (R. V. More, J.)