1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 510 OF 2010 Chandrakant Shankar Bhujbal ........Appellant versus Lalchand Chabildas Marwadi ........Respondent. Mr. D.S. Sawant adv. for the Appellant. Mr. R.N. Gite adv. for the Respondents.1 to 3 CORAM: B. R. GAVAI,J. DATED : 9th September, 2010. P.C.: 1. By way of present appeal, the appellant challenges the concurrent orders passed by C.J.J.D., Nashik dated 18-8-1999 in Regular Civil Suit No. 48 of 1998 thereby dismissing the suit filed by the present appellant and decreeing the Regular Civil Suit no. 49/98 filed by the respondent herein. 2. Regular civil suit no. 48/98 was filed by the present appellant claiming permanent injunction against the defendant from putting any angles in the road which according to the plaintiff was available on the southern side of the land owned by the respondent. The respondent herein has filed regular civil suit no. 49/98 claiming therein that the appellants herein are disturbing with the peaceful possession of the plaintiff over the agricultural land in gat no. 162. The suit of the appellant was dismissed by the 2 trial court holding that the appellant had failed to prove that the appellant was using uninterruptedly the disputed road. It was found that the appellant had the road to go to main road from northern side of the suit premises which was being used. It was further found by the learned trial court that the respondent herein was entitled for a decree of injunction thereby restraining the appellant herein from disturbing the peaceful enjoyment of the plaintiff. The said finding of fact has been upheld by the learned Appellate Court by dismissing the appeal. Being aggrieved thereby the present Second Appeal has been filed. 3. Mr. Sawant the learned counsel appearing on behalf of the appellant submits that the predecessor in title of both the appellant and the respondent were real brothers. He submits that the appellant has been uninterruptedly using the disputed road for going to his residence, which is constructed by the Respondent. He submits that only when the respondent attempted to obstruct the said road he was required to file the suit. He therefore submits that the question of law regarding acquisition of prescription arises for consideration in Second Appeal. 4. Mr. Gite, the learned counsel appearing on behalf of the respondent on the contrary submits that the courts below on the basis of he evidence led on record have rightly come to the conclusion that the plaintiff has failed to prove his claim and as such have rightly dismissed the suit of the present appellant and decreed the suit of the present respondent. 5. Perusal of sec. 15 of the Indian Easements Act 1882 3 would reveal that: “Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption and for twenty years” such a right shall be absolute. 6. It is manifest that the party claiming the right of prescription by acquisition shall be required to prove by cogent evidence that such a right, has been utilized by such a party uninterruptedly for a period of twenty years. Both the courts on the basis of evidence led before it have concurrently held that the present appellant has failed to do so by producing any cogent evidence on record. The learned trial court on the basis of report of the Court Commissioner has come to the conclusion that the plaintiff has miserably failed to prove his claim. The learned appellate court has held that assuming that the report of the Court Commissioner was liable to be discarded for the sake of argument, has held that even independently the appellant has failed to prove his case by leading cogent evidence. Whether such a right exists or not, is a question which has to be determined by the court on the basis of evidence. The courts below upon appreciation of evidence has concurrently came to the conclusion of fact. No perversity is found in the finding recorded by the courts below. In that view of the matter no interference is warranted. No substantial question of law arises. Appeal is dismissed. (B. R. GAVAI, J.) 4