1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 396 OF 2002 Kadu Kishan Patil .. .. Appellant Versus Shamu Sandu Patil Died L.R.s Raghunath Shamu Patil and others.. .. Respondents Shri G. V. Wani, Advocate for the Appellant. Shri A. B. Madke, Advocate h/f Shri M. S. Deshpande, Advocate for the respondents. CORAM : P. R. BORKAR, J. DATE : 24TH JUNE, 2009. ORAL ORDER : 1. Heard G. V. Wani, advocate for the appellant and Shri A. B. Madke, Advocate h/f Shri M. S. Deshpande for the respondents. Learned advocate has taken me through the judgment of first appellate Court. The suit filed by the present appellant to the extent of easement of passing rain water is concerned, which is decreed by trial Court. It is no more challenged. 2 2. The challenge is only extent of easementary right to only light, air and right of way through the property of defendants. The trial Court has discussed all evidence in detail. He stated that on the Eastern side of the house of plaintiff there is public road and absolutely there was no reason for him to take long way for going to Patil Wada. There is no door on the Northen side. There was also no window or door on the side from which right of air and light was claimed. So it was clear that light and air was not enjoyed when there was no door or window on Northern side, on which there is side property of defendants. The city survey record was also produced during the trial. It was observed that there was no such entry of easementary right on Northern side. The map shows that on Eastern side there is public road. There was no road on Western or Northern side. 3. So far as oral evidence is concerned, P.W. 2 Omkar is disbelieved, as cross examination showed that he has no pesonal knowledge. The Trial Court has observed that, so far as P.W. 2 Omkar is concerned, that he was away from the village from 10 to 12 years. Therefore could not be witness to enjoyment of easement by plaintiff during statutory period. The necessary observation are made in para 25 of the judgment of Trial Court. It is also held that evidence of witness Rajaram examined by the plaintiff does not inspire confidence, though he claimed to be brother of plaintiff and defendant. He did not know name of father of Sandu who is father of plaintiff and who is his own 3 grand father. The Trial Court and first appellate Court given reasons for not relying on plaintiffs witnesses. On the other hand, the evidence of D. W. 3 Rajram Raoji and D. W. Ukhardu were found reliable one. 4. In para 14 it is mentioned that plaintiff claimed that he and other 12 residents of wada were enjoying the right of easement, but none of those 12 persons have come forward to support the case of plaintiff. They would have been best witnesses. The appreciation by the Trial Court and the first appellate Court is reasonable and proper. It cannot be said to be perverse. It is not that any piece of inadmissible evidence is considered or admissible piece of evidence is not taken in to consideration. There is no substantial question of law. The second appeal deserves to be dismissed at the stage of admission. Appeal is dismissed. Parties to bear their own costs. [ P. R. BORKAR, ] JUDGE bsb/June09/SA 396.02