1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 343 OF 2006 Vasant s/o Bhanji Choudhari & others APPELLANTS VERSUS Ravindra s/o Shantaram Deshmukh & others RESPONDENTS Shri S.S. Nirkhee, advocate for the appellants. ===== CORAM: R.M.BORDE, J. DATE : 30th July, 2009. PER COURT: 1 Appellants are raising exception to the judgment and decree passed by the District Judge, Jalgaon in Regular Civil Appeal no. 85/2002 decided on 26-4-2005 thereby reversing the judgment and decree passed by the Civil Judge, Sr.Dn., Yawal on 28-2-2002 in Regular Civil Suit no. 7/1990. 2 Plaintiffs claim restrain order against the defendants from using part of their property as access for reaching the public road. According to the plaintiffs, the properties City Survey no. 926 and 925 belong to the defendants and have access to the public road and inspite of that they are creating nuisance by asserting right of way through the property belonging to the plaintiffs which is adjacent to their property. Defendants 2 have controverted the contentions raised by the plaintiffs by filing written statement. It is admitted that so far as property belonging to defendants bearing City Survey no. 926 is concerned, it has an access to the public road whereas the property belonging to defendant no. 2 bearing City Survey no. 927 is concerned, according to defendants, the concerned defendant has right of access through the property belonging to the plaintiffs. It is denied that City Survey no. 925 has any direct access to the public road. Defendants also claim prescriptive right in respect of user of way through the property belonging to the plaintiffs. 3 Trial court after recording evidence of the parties, came to the conclusion that the plaintiffs have failed to establish their case and, as such, dismissed the suit. Plaintiffs being aggrieved by the judgment and decree passed by the trial court, approached the appellate court by filing Regular Civil Appeal no. 85/2002. The first appellate court after considering the evidence placed on record came to the conclusion that the plaintiffs have established their case and while allowing the appeal granted prohibitory decree as prayed for. 4 Perused the judgment and order passed by the courts below. An important aspects to be taken note of is that the owner of City Survey no. 925, defendant no. 2, has transferred right, title and interest in favour of the appellant no. 3 during the pendency of litigation. Appellant no. 3 is the son of appellant no. 1 / original defendant no. 1. Thus, both the properties i.e. City Survey no. 926 and 925 belong to the same family i.e. family of defendant no. 1. It is admitted by defendants in their written statement that City Survey no. 926 has direct access to the public road. 3 As the property bearing City Survey no. 925 is also purchased by the owner of City Survey no. 926, it is to be presumed that City Survey no. 925 also has access. Apart from this, the appellate court on appreciation of evidence has given finding that the owner of City Survey no. 925 has direct access to the public road. So far as the prescriptive rights claimed are concerned, pleadings raised in the written statement in that regard are deficient. It has not been disclosed in the written statement as to since when the defendants are exercising the right of way through the property belonging to the plaintiffs. Apart from the deficiencies in the pleadings, defendants have also not lead sufficient evidence to establish prescriptive right in relation to the property belonging to the plaintiffs. Learned counsel for the appellant has contended that the appellate court has not framed point for determination in proper manner. However, on perusal of the judgment it does appear that the appellate court has taken into account all the evidence placed on record and has recorded proper finding. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( R.M.BORDE, J.) ******* dyb/office/sa343.06.odt