1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.1514 OF 2004 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 25.11.2010. 1. This is appeal preferred by original defendant Nos.1,4 and 10. The present Respondent/original plaintiff had instituted a suit for injunction in respect of a right of way by prescription from the land owned by the present appellants. The trial Court dismissed the suit. The plaintiffs preferred an appeal. The appellate Court allowed the said appeal and clamped injunction against the present appellants and of original defendants causing obstruction in the said right of way. Some of the defendants have assailed the said decree and appeal in the present Second Appeal. 2. Mr.Shete, learned counsel for the appellants contended that the Commissioner's report was objected by the present appellants and still the Commissioner has not been examined as is required U/o 26 Rule 9 of the C.P.C. In absence of the evidence of the Commissioner, the said report is inadmissible in evidence and could not have been relied upon. The learned counsel further contended that the plaintiffs are having an alternate road which they can very well be used. Even the sale-deed on the basis of which the plaintiffs are claiming title have been set aside and as such the plaintiffs can not claim any right of easement from the property of the appellants. 3. Per contra, Mr.Bedre, learned counsel submits that the Court below on reappreciating the whole evidence has come to the conclusion that the plaintiff and his predecessors were using the said way since time immemorial and the plaintiffs have acquired the right by prescription. He further contended that the oral evidence on record has established that the plaintiffs are using the said way. 4. With the assistance of the learned counsels, I have gone through the judgments passed by both the Courts. No doubt, the Commissioner's report would not be admissible in evidence when the said report was objected and the Commissioner was not examined but at the same time the oral evidence of witnesses and more particularly, the evidence of P.W.3 who is the original owner of all the lands concerned establishes the fact that the right of way as claimed by the plaintiffs was being used since time immemorial. The matter involves appreciation of evidence of the witnesses. The appreciation of evidence is not perverse. The view taken by the Court below is a possible view . In such circumstances, when the view taken by the lower Court is a plausible view, the Second Appeal can not be entertained just because another view could be possible. 5. In light of the above, no substantial question of law is involved. As such the Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.25.11.2010. asp/office/sa1514.04