1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.911 OF 2007 WITH CIVIL APPLICATION NO.1652 OF 2007 Vetala Tatyaba Algude & Anr. .. Appellants V/s. Amrutrav Vithalrao Jagtap & Ors. .. Respondents Mr.P.B.Shah for the Appellants. Mr.V.S.Talkute for the Respondent No.1. CORAM : R.M.SAVANT, J. DATED : JULY 29TH, 2008. P.C. This Second Appeal arises out of the Judgment and decree dated 30th August, 2007 passed by the learned Ad-hoc District Judge, Satara. By the said Judgment and decree, the decree passed by the 2 Trial Court in Regular Civil Suit No. 267 of 1994 dated 27th April, 2000 came to be set aside. 2. The Appellants are the original Plaintiffs in Regular Civil Suit No.267 of 1994 filed for perpetual injunction in respect of the right of way which is by the northern side in east-west direction of Gat No.617-618. The Plaintiffs are the owners of land bearing survey No.75-1A + 1B admeasuring 6 acres and 19 Guntha. The Plaintiff No.1 sold the area admeasuring 3 acres out of the said land towards the western side to the Defendant Nos. 1 and 2 on 6th September, 1971. The remaining land of 3 acres and 19 Guntha remained in possession of the Plaintiffs. It appears that thereafter the Defendant Nos. 1 and 2 sold an area of about 1 acre to the Defendant No.3 and 4. It is the case of the Plaintiff that in the recital of the sale deed dated 6th September, 1971 they have reserved for themselves the right of way to the northern side of the said Gat No.617-618 to go to the Sangvi-Pimpred Road and also for taking water from the channel. On account of the obstruction caused by the Defendant Nos. 1 and 2, 3 the Plaintiff filed the said suit. 3. On the basis of the material that was before it, the Trial Court decreed the suit and while decreeing the said suit came to a conclusion that in the said sale deed the Plaintiffs have reserved for themselves the use of the said road and the drawing of the water from the channel. 4. Aggrieved by the decree passed by the Trial Court the Respondents Defendants filed Regular Civil Appeal No. 199 of 2000, the said Appeal came to be allowed and the decree of the Trial Court came to be set aside. The Lower Appellate Court was of the view that the conclusions arrived at by the Trial Court were erroneous the Lower Appellate Court was of the view that the recital in the said sale deed was vague and ambiguous and on the basis of the said recital the Plaintiffs could not be granted the said relief of perpetual injunction. The Lower Appellate Court also taking into consideration the report of the Court Commissioner who has in terms observed that 4 crops were existing on the cart way in question and therefore it could not be said that the Plaintiffs were using the said road. 5. The Lower Appellate Court also taking into consideration the fact that if the said relief was granted, it would be impossible for the Defendant Nos.1 and 2 to cultivate their lands and therefore held that the said vague and ambiguous recital in the said sale deed could not be implemented. The Lower Appellate Court was also of the view that the Plaintiffs were passing through the land of one Girjabai Bender for reaching the said Sanglvi-Pimpred Road which was through land bearing Gat No.552-557 and therefore, the Lower Appellate Court came to a conclusion that the Plaintiffs have an alternative way to approach said Sanghvi-Pimpred Road. The conduct of the Plaintiff in not reporting the existence of the said road at the time of the implementation of the Consolidation Scheme was also a circumstance taken into consideration by the Lower Appellate Court. The Lower Appellate Court therefore on re-appreciation of the evidence came to a conclusion that the decree passed by the Trial 5 Court was required to be set aside. 6. In my view, the exercise of the Appeal jurisdiction by the Lower Appellate Court, in the facts and the circumstances of the case cannot be faulted with. The challenge raised in the Second Appeal does not involve any substantial question of law. The Appeal is accordingly dismissed. 7. In view of the dismissal of the Second Appeal, the Civil Application No.1652 of 2007 does not survive and is disposed of as such. [R.M.SAVANT, J.]