1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 853 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. B.V. Wagh , Advocate for the appellant. ............................. CORAM : S.V. GANGAPURWALA, J. DATE : 26/10/2010 PER COURT : 1. This is plaintiff’s Second Appeal. The plaintiff had filed Suit for injunction, perpetual and mandatory, against the defendants for removing the construction and from obstructing the plaintiff in using the common lane. 2. The trial Court decreed the Suit to the extent of injunction, perpetual and mandatory. Defendant no. 1 and 2 preferred Appeal. The appellate Court allowed the Appeal and dismissed the Suit. The plaintiff aggrieved by the said Judgment, has approached this Court. 3. Mr. Wagh, the learned counsel for the appellant contended that the trial Court after recording the evidence, has rightly come to the conclusion about the right of the way. Even the 2 trial Court has considered the admission given by the defendant. But, the appellate Court has ignored this fact. According to the learned counsel, it is not disputed that initially the property was one and there was partition between the plaintiff and defendant no. 1; wherein the plaintiff was given eastern side of the house and defendant no. 1 was given the western side. The road passes through east – south and the same is obstructed by the defendants. According to the learned counsel, the appellate Court without considering these aspects, has relied on stray sentences in the deposition of the witnesses and as such has rendered erroneous Judgment. 4. With the assistance of the learned counsel, I have gone through the Judgments passed by both the Courts. 5. Except the map of CTS No. 354, there is no documentary evidence on record and there is word against word. It has been observed by the lower appellate Court that in the map of CTS No. 354 produced on record, it would reveal that there is no lane at all. There is Govt. property on the southern side of the plaintiff’s property as well as the defendant’s property and that has been admitted by the plaintiff in his evidence. Even the neighbour of the plaintiff one Gadakh, who is examined at Exh. 32, has also admitted in his evidence that there is no road towards southern side of the house of plaintiffs and defendants. The 3 appellate Court relying on these admissions and the map of CTS No. 354, has arrived at plausible conclusion. In such circumstances, no substantial question of law arises. As such, the present Second Appeal is dismissed with no order as to costs. 6. In view of dismissal of Second Appeal, the Civil Application does not survives and as such disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 853.04