1001sa569.10.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.569 of 2010 Nilkanth Narayanrao Langde and one anr. ..vs.. Shri Ankush Kedarrao Bobade ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr.C.J.Dhumane Adv. for the appellants. Mr.Rajgure, Adv. for the respondent. CORAM : R.M.SAVANT, J. DATED : 10th January, 2011. The above second appeal takes exception to the judgment and decree dated 28th July, 2009 passed by the first appellate court in Reg.Civil Appeal No.160 of 2005. By the said judgment, the suit came to be decreed and it was held that the respondent herein has a right of way passing through the points ABCD as mentioned in the plaint map and that he could use the same as foot-way as well as a bullock -cart way. The respondent herein is the original plaintiff, who had purchased a field bearing S.No.239/1 from one Manohar Naktode on 8/3/1992. In the said sale-deed, there is a specific covenant that the plaintiff would be allowed to take bullock cart and to walk along side the boundary of the remaining fields of the said vendor, so as to carry out cultivation. It appears that thereafter in the year 1988 the said vendor, Manohar Naktode sold the adjoining field being S.Nos.241 and 252 to the appellants herein i.e. the defendants. It appears that the defendants allegedly 1001sa569.10.odt 2 obstructed the plaintiff/respondent some time in January, 2002 from reaching his field through the common boundary of their fields i.e. boundary marked by alphabets ABCD in the plaint. Hence, the plaintiff filed the suit for permanent injunction, not to disturb him from passing through the said suit way with his bullock cart and also to use the same as a foot way. The defendants filed the written statement. They admitted that the vendor was common to both the parties. However, they denied that the vendor had given any right of way to the plaintiff to pass by foot or to take bullock cart from the boundary of their fields. In the alternative, they stated that even if the said right was granted to him by the vendor the same came to an end on their purchasing the fields from the said vendor. The parties went to trial. Both the parties led evidence in support of their cases. The trial court on the basis of the oral as well as documentary evidence, recorded a finding that the right, if any, of the plaintiff was only up to the time when the vendor was owning the fields; but once he sold the fields to the defendants, the said right came to an end. The Trial Court, therefore, dismissed the said suit. Being aggrieved by the dismissal of the said suit, the plaintiff filed appeal being Reg.Civil Appeal No.160 of 2005. The said appeal came to be allowed and the appellate court decreed the said suit. The appellate court took into consideration the conditions covenant mentioned in the sale- deed of the plaintiff that he has a right to Vahivat i.e. right of way as right of Vahiti i.e. cultivation to the fields owned by the erstwhile vendor. The first appellate court also took in to consideration the compromise deed Exh.43 entered in 1001sa569.10.odt 3 between some of the other land holders, and by virtue of which the plaintiff was allowed to pass through the boundaries of their fields by the said land holders. The first appellate court also took into consideration the oral evidence, which was adduced by the plaintiff in support of his case namely; that of the vendor who, in turn denied that the right of way of the plaintiff to go by bullock cart through the adjoining field was not extinguished on the sale of adjoining fields to the defendants. The appellate court, therefore, recorded a finding that the right which had vested in the plaintiff by virtue of the sale-deed, could not come to an end merely because adjoining fields were purchased by the defendants. In my view, the appellate court has recorded findings of fact based on reappraisal of evidence on record. In my view, the Second Appeal does not involve any substantial question of law which is accordingly dismissed. JUDGE chute