1 S.A.No.776/09 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.776 OF 2009. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 14.12.2010. 1. This is defendant No.1's Second Appeal. The plaintiff had filed a suit seeking a right of way from the land of the defendant No.1. The trial Court dismissed the suit. The plaintiff preferred an appeal. The appellate Court allowed the appeal and clamped injunction against the defendant No.1 from obstructing the plaintiff from using the said way. The defendant No.1 has assailed the said judgment in Second Appeal. 2. Mr.Wani, learned counsel for the appellant contended that the trial Court on 2 S.A.No.776/09 appreciation of evidence had dismissed the suit of the plaintiff. The trial Court relied on the testimony of the plaintiff, so also the Commissioner's report and the fact of existence of alternate way, had rightly come to the conclusion. According to the learned counsel, the lower appellate Court has not considered the reasoning given by the trial Court and had arrived at erroneous conclusion. 3. Mr.V.T. Choudhari, learned counsel for the plaintiff submitted that the plaintiff had examined the vendor of the defendant No.1 who also admitted the existence of the said way. The defendant has not even examined the adjoining land owners. Even the Commissioner's map would show that the case of the present plaintiff was probable. 4. With the assistance of the learned counsels, I have gone through the judgments. The lower appellate Court has considered that there is existence of 20 ft. wide road i.e.the suit way. The defendant No.1 contends that he has constructed it for his own use but the vendor of 3 S.A.No.776/09 the defendant No.1 himself has categorically admitted in his evidence that the suit way was in existence since long. Even the P.W.2 is examined to show the use of the way. Just because the other way is in existence from the streamlet which is also used, the same would not be an impediment for the decree being passed regarding the present suit way. 5. The Court below by preponderance of probabilities have come to the conclusion. The view taken by the lower appellate Court is a plausible view. The Second Appeal could not have been entertained only on the ground that some other view is possible. 6. The Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.14.12.2010. asp/office/sa776.09 4 S.A.No.776/09