1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.453 OF 2010. (SITARAM ZAMU CHAVAN....VS.. CHINKABAI FAKIRA JEVUGHALE & OTH.) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.A.Mohta h/f. Mr. R.L. Khapre, Advocate for Appellant. CORAM : SMT. VASANTI A. NAIK, J. DATED : OCTOBER 19, 2010. Heard Mr. Mohta, the learned counsel for the appellant. 2. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the defendant Nos.1 and 4 did not have a right to pass through the suit way in the field of the plaintiff. It was the case of the plaintiff that the defendant Nos. 2 and 3 were the owners of the land which was purchased by the plaintiff during the pendency of the proceedings between defendants No.1 and 4 and defendant Nos. 2 and 3 in the Court of Mamalatdar. It was pleaded by the plaintiff that the defendant Nos. 1 and 4 had filed an application under Section 5 of the Mamalatdar's Courts Act against the defendants No.2 and 3 seeking a right of way through the property of the defendant Nos. 2 and 3. The Tahsildar passed an order in favour of the defendant Nos.1 and 4 and directed the defendant Nos. 2 and 3 to remove the obstruction on the suit way. During the pendency of the proceedings before the Tahsildar, the property was purchased by the plaintiff on 05.11.1996. Against the order of the Tahsildar/ Mamalatdar the defendant Nos. 2 and 3 had preferred the revision. However, the revision was also dismissed. After the dismissal of the revision, the present suit was instituted by the plaintiff seeking declaration and permanent injunction. 2 3. The defendant Nos. 1 and 4 denied the claim of the plaintiff and pleaded that the suit way was in use for the period of nearly 100 years. The defendants pleaded that the Mamlatdar had held, in the proceedings under the provisions of the Mamlatdar's Courts Act, that the defendant Nos. 1 and 4 had a right of way through the suit property. The defendants sought for dismissal of the suit. 4. Both, the trial and the first appellate Court, on an appreciation of the evidence on record, came to a conclusion that the plaintiff was not entitled to a declaration and injunction as sought by him. The Courts held, by relying on the order of the Tahsildar and the revisional authority under the Mamlatdar's Courts Act, that the defendant Nos. 1 and 4 had proved a right of way through the suit way. The Courts held that the defendants No.1 and 4 were using the suit way from time immemorial. The first appellate Court held that there was no other alternate way for the defendant Nos. 1 and 4 to approach their field. The first appellate Court observed that the field Gut Nos.303, 304 and 305 belonged to a common ancestor and it was apparent from this fact that there was a right of way for the defendant Nos. 1 and 4 through the field of the plaintiff which was initially owned and possessed by the defendant Nos. 2 and 3. The Courts also considered the map at Exh.106 and other evidence on record to non-suit the plaintiff. 5. The findings recorded by both the Courts are pure findings of facts, based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. It cannot be said that the orders of the Tahsildar and the revisional authority could not have been considered by the Courts as the orders were not final, since, those documents were weighty pieces of 3 evidence which the Courts ought to have considered along with other oral and documentary evidence on record. The judgments reported in AIR 1991 BOMBAY 119 (Smt. Radha Krishna Kandolkar & oths. Vs. Tukaram Pundalik Homkhandi) and 2003(2) Bom. C.R. 177 (Union of India Vs. Maruti Madhav Kerulkar) and relied on by the learned counsel for the appellant, are inapplicable to the facts of this case. The Second Appeal fails and is dismissed with no order as to costs. JUDGE RR.