1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION VPH SECOND APPEAL No.733 OF 2007 AND SECOND APPEAL No.734 OF 2007 Sitaram Karbhari Ugale Appellant Vs. Janyabai Punja Nagare & Ors. Respondents Mr. P. N. Joshi, for the appellant. Mr. R. N. Gite, for the respondent No.1. CORAM : ANOOP V. MOHTA, J. DATE : JUNE 26, 2008. PC : . Appellant herein is the plaintiff in Regular Civil Suit No. 236 of 2001 whereby a declaration and injunction was sought in respect of the property, as mentioned in the plaint. The defendants were restrained from creating the new road from the suit lands, by order dated 2nd December 2005. Considering the material placed on record, the said suit was dismissed by holding that the plaintiff/ appellant had failed to prove even the existence of road for enjoyment and it was not described properly. However, defendants have every right to protect their property and obstruct plaintiff from enjoyment of the illegal road and thereby refused to grant by accepting contention of the 2 defendants/respondents that the case of the plaintiff was false. 2. The Regular Civil Suit No. 268 of 2001 was filed by the respondent Nos. 1 and 2 herein against the appellant herein, for declaration and injunction and based on the material on record, the suit is partly decreed and thereby appellants herein are restrained from creating the new road from the suit lands. However, the prayer in respect of declaration was dismissed. In the result, the respondents have proved that the common village boundary road, as mentioned in the plaint is in existence for passing through the land of the appellant and further that defendants/appellants herein are not creating new road from their land. Therefore, injunction as sought was granted and refused to grant declaration, as the prayer for the same was not within limitation. There is no challenge made by the respondents herein with regard to the said declaration of road. 3. The appellants have preferred two appeals being Regular Civil Appeal No. 381 of 2005 and 3 of 2006. The lower appellate court dismissed the Regular Appeal No. 3 of 2006. However, by the said judgment partly allowed the Regular Appeal No. 381 of 2005. The judgment and decree passed in Regular Civil Suit No. 236 of 2001 was set 3 aside to the extent of grant of compensatory costs only. In the result, the basic point decided by the court in both the matters against the appellant remained intact. Therefore, present Second Appeals filed by the appellant. 4. The findings were given by the courts below on both the issues are based upon the evidence and material available on record. The respondent/original plaintiff in Regular Civil Suit No. 268 of 2001 proved the case whereas the appellant in Suit No.236 of 2001 was unable to substantiate his case. On the contrary, in the same suit respondents/original defendants therein were able to substantiate that the allegations levelled against them were false. 5. After going through the findings given by the courts below and the distinction was drawn rightly, considering the aspect of customary right and customary easement. The conclusion as drawn, cannot be said to be contrary to the record and the law, as appellant failed to prove old existence of road itself. The respondents had proved the availability of alternative way to go to block No. 65, and hence, there is no case made out by the appellant. 6. The decisions so relied by the courts below while 4 passing common order, as matter has partly proceeded on mere submission in both these appeals, there is nothing to find fault with the findings of both the courts below. In the result, both these appeals are dismissed. Sd/- [ ANOOP V. MOHTA, J.]