1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL No. 174 OF 2008 Renukadas S/o chandrakant Deshmukh & others Appellants V E R S U S Kadaji Bappaji Tipale and others Respondents Shri G.K. Thigale, Advocate for appellants Shri. N.P. Bangar, Advocate for respondent Nos. 1 & 2 CORAM : A.V. NIRGUDE, J. DATE : 28th July, 2010 PER COURT: 1. The second appeal is filed, challenging the concurrent findings of the Courts below that the respondent / plaintiff suing in the representative capacity and proved that there exists a public road (cart road) through the appellant’s land. Both the Courts below accepted the evidence of the respondent / plaintiff about existence of the road. The respondent / plaintiff even produced documentary evidence in the form of revenue record to prove that the road existed since prior to 1955. 2. The Advocate appearing for the appellant raised two points. First that the village which used the suit road has been now rehabilitated at some other places and the residence of the village would no longer require the suit road. The learned Judge of the Court below rejected this argument saying that the road would continue, even though the village is rehabilitated. The rehabilitation of the Village would not destroy the easement right and the road would continue to be a public amenity. 3. The second point is rather insignificant. It is asserted that the respondent / plaintiff did not follow the mandatory provisions of Order 2 1 Rule 8 of the Civil Procedure Code before continuing this suit in representative capacity. However, this was never an issue between the parties. Had this been an issue between the parties, the Trial Court would have certainly framed an issue. Even the first appellate Court did not discuss this issue. The learned Advocate cannot raise this issue for the first time, at this stage. 4. After perusal of the judgments of the Courts below, I find that the suit is decreed for valid reasons. There is no possibility of substantial question of law arising in this appeal. The appeal should fail. It stands dismissed. [ A.V. NIRGUDE, J. ] sdm/174/08/sa