-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 440 OF 2008 ALONGWITH CIVIL APPLICATION NO. 373 OF 2008 IN S.A. NO. 440 /2008 1. Digambar Raghunath Pujare @ Kambli and others .. Appellants. (Org.Defendants) V/s. Shri Dipak Premanand Kambli .. Respondent. (Org.Plaintiff) --- Mr. Harshal N. Mirashi for the Appellants. Mr. N.N.Gawankar i/by Arfan Sait for the Respondent. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 30th September, 2008. DATED : 30th September, 2008. DATED : 30th September, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Mirashi, learned counsel for the appellants and Mr. Gawankar, learned counsel for the Respondent. 2. This is the defendant’s appeal. The respondent-plaintiff’s suit for declaration that he has easementary right of way through the property of appellants and for perpetual injunction, restraining the appellants from causing obstruction to the respondents and for removal of the compound wall constructed on the -: 2 :- suit way, was dismissed by the trial court. 3. The lower appellate court, however, allowed the appeal of the respondent and declaration and injunction as sought for was granted in favour of the respondents. 4. The respondent is owner of house no. 57 and the appellant is owner of house no.61. Both the houses originally owned by common ancestor. The lower appellate court recorded finding of fact that there is no alternative way available to the respondent to have access to the main road and thereafter concluded that the respondent has made out the case for easement of necessity. The learned counsel for the appellant could not point out that the finding of fact recorded by the last fact finding court to the effect that the respondent has no alternative way to approach main road, is perverse. 5. In that view of the matter, the second appeal is devoid of merit. The same is accordingly dismissed. 6. In view of the dismissal of the second appeal itself, the civil application does not survive and the same is disposed off as such. -: 3 :- (R.V.MORE,J.)