1 S.A. No. 1047.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.1047 OF 2005 Rajendra Jagannath Mali .. APPELLANT VERSUS Jagannath S/o Motiram Mali & others ...RESPONDENTS ... Shri. P.R. Patil, Advocate for the appellants Shri R.M. Deshmukh, Advocate for respondent CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : This is defendant’s Second Appeal. The plaintiff had filed a suit for injunction in respect of the suit way claiming that the plaintiff has right to take water from channel to the land of the defendant. The trial Court decreed the suit. The defendant preferred an appeal. The appellate Court also dismissed the appeal, confirming the Judgment and Decree 2 S.A. No. 1047.2005 passed by the trial Court. The defendant has assailed the said Judgment in the present Second Appeal. 2. Shri P.R. Patil, the learned Counsel for the appellant submits that both the Courts below have failed to take into consideration the Commissioners report, which clearly shows the other road available to the plaintiff. When the other way is available it cannot be case of easement of necessity. The learned Counsel further contended that the suit was barred by limitation, in view of Article 58 of the Indian Limitation Act and Section 44 of the Easement Act. The learned Counsel submitted that the Courts below have perversely appreciated the evidence, and as such the same requires re- consideration by this Court. 3. Per contra, Shri R.M. Deshmukh, learned Counsel for the plaintiffs states that the appeal filed before the lower appellate Court itself was not maintainable, in as much as prior to the filing of the present appeal, the defendant had 3 S.A. No. 1047.2005 filed a separate appeal along with an application for condonation of delay which was rejected, and as such the subsequent appeal filed before the lower appellate Court was not tenable. The learned Counsel also contends that the Courts below have properly evaluated the evidence. 4. With the assistance of learned Counsel I have gone through the judgments passed by both the Courts below. The Courts below have considered the position prior to the partition of the land and have come to the conclusion that the suit road exist, and the defendant does not have any right to close down the same or change the nature of the road after partition. Theory of defendant of an alternative road is discarded by the Courts relying on the evidence of defendant himself, who has stated that the other road shown by the Commissioner is through the nala which is 20feet in width and 5 to 6 feet in depth, and during the rainy season same cannot be used. 5. In the light of the above, the Second Appeal being sans substantial question of law is 4 S.A. No. 1047.2005 dismissed. However, there shall be no order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*