:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.382 OF 200 SECOND APPEAL NO.382 OF 200 SECOND APPEAL NO.382 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.222 OF 2008 CIVIL APPLICATION NO.222 OF 2008 CIVIL APPLICATION NO.222 OF 2008 Shri Uttam Bapu Kergal ...Appellant. v. Shri Rajendra Bhagwan Kergal & Ors. ...Respondents. Mr.Uday Warunjikar , adv. for the Appellant. Mr.S.V.Sadavarte , adv. for the Respondent Nos.1 to 5. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 21st July, 2008. DATE: 21st July, 2008. DATE: 21st July, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the appellant, who is the original plaintiff. Admittedly, plaintiff is the owner of the land gat no.47 and the respondents/defenants are the owners of land gat no.46. In the land gat no.47 at a short distance from the boundary, there is a common well. Defendants claim right of way through land gat no.47 to approach the well as there is no other way from land gat no.46. The plaintiff filed suit seeking permanent injunction contending that the defendants were trying to create a new road for taking bullock carts, cattles through land gat no.47 belonging to the plaintiff. The defendants contested the suit and denied that they are creating a road or right. According to them, they are using the land gat no.47 only for the purpose approaching common :2: well on which they have got the right. The Commissioner was appointed. After the oral evidence including that of the commissioner, the trial Court passed the decree in favour of the plaintiff restraining the defendants from taking bullock carts, cattles, etc. through land gat no.47. The trial Court found that the defendants could approach well by another way through gavthan. The defendants preferred regular Civil Appeal No.97 of 2002. The appellate Court after going through the evidence and after analysing the commissioner’s report found that the defendants have no other way to approach the well except through gat no.47. In the result, appeal was allowed and the judgment and decree passed by the trial Court were set aside. Therefore, the plaintiff has preferred the Second Appeal. 2. Heard Mr.Warunjikar the learned counsel for the plaintiff/appellant. None for the respondents. With the help of Mr.Warunjikar, I have gone through the judgments of both the Courts below as well as the City Survey report, city survey map, the map prepared by the Commissioner and his report. It appears that the land gat no.46 is to the Western side of gat no.47. These two lands appear to be divided by same stream and at a short distance from that boundary, there is a well in gat no.47 Admittedly, the defendants have got right of taking water from that well. After perusal of the commissioner’s report and the city survey map, it is :3: clear that the defendants can not approach the common well without passing through the land gat no.47 belonging to the plaintiff. The learned First Appellate Court has considered the evidence on record and allowed the appeal and dismissed the suit. There is no substantial question of law involved in the second appeal. Therefore, this appeal stands dismissed summarily. 3. As the appeal itself is dismissed, Civil Application No.222 of 2008 does not survive and stands disposed off. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)