( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 755 OF 2008 Maruti s/o Hanmante Mane and others. APPELLANTS VERSUS Baburao s/o Rangrao Patil and others. RESPONDENTS ..... Mr. E.S. Murge, advocate holding for Mr. A.S. Bayas, advocate for the appellants. Mr. A.M. Gaddime, advocate holding for Mr. V.D. Gunale, advocate for the respondent No.1. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 3rd November, 2009] PER COURT : 1. Heard. 2. The plaintiff’s suit for mandatory injunction came to be decreed. The decree is confirmed by the first Appellate Court. The suit laid before the trial Court pertained to right of easement in respect of northern side lane of 8-10 feet. The lane is abutting the house of the respondent (plaintiff). According to him, he ( 2 ) used to drift rain water from the roof of his house in the suit lane. He acquired easementary right of use dropping due to consistent use of the suit lane for more than twenty years. The suit was resisted by the appellants (defendants) on the ground that there existed no by-lane. The trial Court held that plaintiff’s enjoyment of the suit land is duly proved. The trial Court also noticed that temporary wall was raised by placing pile of stone (-----) and thereby the defendants have stopped the regular flow of the rain water through the lane. Consequently, mandatory injunction decree is granted which is confirmed by the first Appellate Court. 3. Counsel would submit that there is no easementary right available to the plaintiff (respondent). He would submit that without seeking declaration of such right of easement, the suit is not maintainable. 4. There are concurrent findings of fact as regards existence of the suit lane. The rough sketch (Exh-13) was proved by the plaintiff. The evidence on record is duly appreciated by both the Courts below. The report of the Court Commissioner (Exh-13) would show ( 3 ) that the suit land exists at the spot. In view of the findings of fact, there is hardly any substantial question of law involved in the second appeal. Therefore, the second appeal is dismissed. 5. In view of dismissal of the second appeal, civil application No. 10385/2008 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa755-08