1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 340 of 2009 1. TUKARAM S/O BHIKAJI BAVANE R/O ASALGAON, JALGAON JAMOD, BULDHANA .. PETITIONER/S VERSUS 1. TOTARAM S/O KANHUJI SATOTE (LR OF KU SATOTE) R/O ASLAGON, JALGAON JAMOD, BULDHANA .. RESPONDENT/S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Z.A. Haq, Advocate, for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 14 , 2009 . Heard Shri Haq for the appellant. The appellant is the original defendant. A suit was filed by the plaintiff for grant of permanent and mandatory injunction restraining the defendant from obstructing the plaintiff from using the suit lane as a right of way and for the flow of water. According to the plaintiff, the plaintiff was using the suit way from time immemorial. He claimed easement by prescription and easement of necessary. The defendant denied the claim of the plaintiff and pleaded that the said lane was being used only for the flowing of rain water and was never used by the plaintiff as a way. He denied that he had caused any obstruction in the lane by digging a pit. Both the Courts concurrently held that the plaintiff had succeeded in proving that since the time immemorial, the plaintiff and his predecessor were using the 2 suit way for egress and ingress and for flowing of the rain water. The Courts further held that the defendant had obstructed the right of way of the plaintiff by digging a pit in the suit lane. The findings recorded by both the Courts are pure findings of fact based on an appreciation of the material evidence on record. The submission made on behalf of the appellant that the plaintiff was bound to prove that the plaintiff was using the suit way to the knowledge and acquiescence of the defendant, is liable to be rejected as in the present case, this situation would not come into play as it is the case of the plaintiff that the suit way was used by the plaintiff by prescription and as an easement of necessity and the defendant had denied that claim of the plaintiff. The second submission made on behalf of the appellant that the plaintiff can never claim both, easement by necessity and easement by prescription, is also liable to be rejected. The judgment reported in A.I.R. 1929 Bombay 144 and relied on by the learned counsel for the appellant, cannot be made applicable to the facts of the case. The second appeal is dismissed with no order as to costs. JUDGE RMP