IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.268/2010 VASANTRAO YADAVRAO DHOTE ..VS.. VIJAY MADHUKAR DHOTE =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri A.C.Dharmadhikari & Shri Kotwal, advocates for appellant. C ORAM : SMT. VASANTI A NAIK,J. DATED : 17 th June, 2010. Heard the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff, for a declaration that the plaintiff had an easmentry right to use the suit way. According to the plaintiff the defendants had obstructed the right of way by blocking the three feet lane which was in between the houses of the plaintiff and the defendants by putting walls and shutters. The plaintiff pleaded that he was using the suit way for a period of about 40 years. The defendants denied the claim of plaintiff and pleaded that there was a partition between the plaintiff and the defendants and in view of the partition deed the defendants became the owner of the suit property i.e. the three feet lane. It was pleaded by the defendants that the plaintiff did not have any right of egress or ingress through this lane. They had further denied that they had made any illegal construction over the suit property. It was pleaded that in the year 1978, the defendant no.1 and 2 had leased the upper portion of their house to the father of the defendant no.4 & 5 to start the business and subsequently that part was sold to their father. At the time of construction, according to the defendants, they had left a narrow passage on the eastern side of the shop for use and enjoyment of rest of the defendants and the said passage was in their exclusive possession and use and the plaintiff had no right, title or interest in the passage in question. The defendants, therefore, denied that the plaintiff had an esmentry right over the suit property. Both the courts on an appreciation of the evidence on record held that the plaintiff had not succeeded in proving that he had an easmentry right to use the suit way. It was held that the plaintiffs had further failed to prove that the defendants had carried out unauthorized and illegal construction, on the suit land and obstructed their way to the first floor. In view of the aforesaid findings, the courts held that the suit of the plaintiff was liable to be dismissed. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the material evidence on record. While rendering the findings on the two aforesaid issues which mainly arose for consideration in the case, the courts relied on the partition deed at Exhibit 65 which showed that the passage fell to the share of the defendants and that there was no mention of any right of the plaintiff over the suit way in the partition deed. The courts further considered the evidence tendered by the defendants’ witnesses and also relied on certain admissions of the plaintiff and his witnesses in their cross-examination to hold that the plaintiff did not have any easmentry right over the suit property and he had been unsuccessful in proving that the defendants had illegally blocked the suit way. Since the findings recorded by both the courts are pure findings of facts and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE SMP