( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 152 OF 2009 Narhari s/o Shankar Bikkad & others APPELLANTS VERSUS Narhari s/o Bhimrao Mule and others. RESPONDENTS ..... Mr. S.S. Thombre, advocate for the appellants. Mr. N.R. Pawde, advocate holding for Mr. Sachin S. Bhise, advocate for respondents No. 1 and 5. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 7th November, 2009] PER COURT : 1. Heard counsel for the parties. 2. Adjournment was sought on behalf of the caveator for the reason that Mr. Bhise has gone out of station. The request was rejected. 3. The appellants are original defendants against whom there is concurrent finding rendered by both the Courts below regarding existence of a pace way through their agricultural land bearing Survey No. 5. The ( 2 ) plaintiffs’ case before the trial Court was that they are owners of land bearing Survey No. 4A and are required to use the pace way which goes across land of the defendants and that their user of such pace way is obstructed by the latter. The trial Court as well as the first Appellate Court accepted the contentions of the plaintiffs (respondents) and decreed the suit. 4. Mr. Thombre would submit that there is a pace way available from over common boundaries from lands survey No. 4A and survey No. 5 of the parties and the existence of the suit way through survey No. 5 is not proved at all. He would submit that the trial Court committed patent error while deciding the question about existence of the pace way without framing issue as regards existence of alternate way from over the boundaries of the land. It is also argued that the obstruction is not proved, but the conduct of the respondents could be regarded as implied obstruction. I do not agree. The Courts below found that the suit way is shown in the village map (Exh-48) and there is no sufficient evidence to rebut presumptive value available ( 3 ) to the public in question. The Courts below held that the plaintiffs have proved the existence of the pace way in question. This is purely a finding of fact. The findings of fact cannot be questioned in the second appeal in view of “Arumugham (dead by L.Rs.) and others v. Sundrambal and another” (AIR 1999 S.C. 2216) and “Kashmir Sing v Harnam Sing and another” (AIR 2008 S.C. 1749) and hence, the second appeal is not maintainable as no substantial question of law is involved in this second appeal. 5. It is well settled that even if the villagers are allowed to pass from over common boundaries of the lands, yet, such permissive user does not give any easementary right as such and, therefore, the plea of the appellants could not be entertained by the Courts below. There is no perversity in the findings of the Courts below about existence of the suit pace way which is indicated in the old village map (Exh-48). Under these circumstances, the second appeal is dismissed. No costs. ( 4 ) 6. In view of dismissal of the second appeal, the civil application No. 2678/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa152-09