1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 496/2006 (Jaiwantabai wd/o Harichand Mate & 2 others Versus Kisan Balu @ Baloo Khaire & 2 others) - Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Ms. V.Y. Wasu, counsel for the appellant. Shri A.P. Padhye, counsel for the respondent. CORAM : Smt. Vasanti A. Naik, J. DATED : 28 th JULY, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff no.1. A suit was filed by the plaintiffs for a declaration that the plaintiffs had a right of way through the suit way on the side of the defendant's property. The plaintiffs also sought a permanent injunction restraining the defendant from obstructing the plaintiffs from using the suit way. According to the plaintiffs, the plaintiffs and the predecessor in title of the plaintiffs were using the suit way for a period of more than 30 years peacefully, continuously and without any obstruction from the defendant. The defendant denied the claim of the plaintiffs and further denied that there was a right of way to the plaintiffs through the defendant's field. It was denied by the defendant that the suit way was a 10 feet wide road and that the plaintiffs were 2 using the same for taking the bullock-cart and implements in their fields. The defendant further pleaded that the suit was bad for non-joinder of Kashinath, owner of field survey no.53 as he was a necessary party to the suit. The trial Court, after framing the issues and considering the evidence tendered on record, held that the plaintiffs had succeeded in proving the right of way to the suit field through the suit way. The Court further held that the defendant had obstructed the plaintiffs for user of the way, and therefore, the plaintiffs were entitled for grant of declaration and permanent injunction as prayed in the suit. The trial Court, therefore directed the defendant to restore the Dhura to the breadth of 7 feet. In an appeal filed by the defendants, the judgment passed by the trial Court was set aside and the findings recorded by the trial Court were also reversed on all the issues. The first appellate Court held that the plaintiffs had not succeeded in proving that they had right of way through the defendants field. The first appellate Court then held that the plaintiffs failed to prove that the plaintiffs acquired an easementary right of way as pleaded by the plaintiffs. Consequently, the first appellate Court dismissed the suit of the plaintiffs. The findings 3 recorded by the first appellate Court are challenged in the instant appeal. I have perused both the judgments in detail. The first appellate Court considered the fact that the sale-deed executed by the predecessor-in- title of the plaintiffs in favour of the plaintiffs did not mention the easementary right of way through the field of the defendant. The first appellate Court also considered the fact that there was no entry in the revenue record to show that there was a right of cart way through the field of the defendant. The first appellate Court rightly observed that the plaintiffs did not produce the best evidence on record by examining the predecessor-in-title of the plaintiffs to show that he was using the suit way for taking his bullock-cart. Though the commissioner's report was placed on record, the plaintiffs had failed to examine the commissioner to prove the correctness of the same. The first appellate Court then observed that though the plaintiffs had claimed the right of way along the Dhura of field survey no.53 belonging to one Kashinath and then the plaintiffs had to pass through the suit way, the plaintiffs had neither joined Kashinath as party defendant to the suit nor examined him as a witness on their behalf. The first appellate Court then observed that the certified maps placed on record at 4 Exhs.103 and 104 also contradicted the case of the plaintiffs. The 7/12 extracts at Exhs.101, 81 and 82 also did not speak about the right of way through the field survey nos.51 and 53. Thus, on a reappreciation of the entire material on record, the first appellate Court arrived at the findings of facts which are recorded in the judgment. The reasons recorded for the findings are extremely reasonable and the findings cannot be said to be perverse by any stretch of imagination. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE