1. This second appeal was not board. However, Appeal From Order No.99/2013 is on today's admission board at Sr. No.22. Mrs. Deshpande, learned counsel for the appellants, commenced her arguments on A. O. No.99/2013 and during the course of hearing it was noticed that the result of this A.O. depends fully upon the result of Second Appeal No.426/99. That being so, with the consent of learned counsel for both the parties, present A. O. as well as S. A. were posted for final hearing and disposal at 2.30 p.m. and accordingly both the appeals have been heard together.

2. Since result of A.O. No.99/2013 depends on the result of S.A. No. 426/1999, I have taken the said appeal for hearing and disposal first. Upon hearing learned counsel for the rival parties, I find that the following substantial questions of law will have to be reframed since the question of law framed on 20.12.2001 in the light of the arguments advanced before me do not arise. Hence, following substantial questions of law are reframed:

(i) Whether the suit of the plaintiffs for injunction from using Dhura to field No. 28 as way for the defendants, should be decreed in view of non existence of way by Dhura of field survey no. 28 or non existence of any Government Pandhan or road through Dhura of field survey no. 28? … YES.

(ii) Whether the defendants were entitled to use Dhura of field survey no.28 belonging to the appellants-plaintiffs in the absence of any documentary proof from the revenue department for claiming such a right? ... NO.

(iii) Whether in the absence of any existing right of way over Dhura of survey no. 28 or in the absence of access to the defendants set out for claiming easement by prescription, the civil Court could have allowed the way over Dhura of field survey no. 28 as way for the defendants only on the ground that it was reasonable access for the defendants? … NO.

3. Perused the impugned judgments recorded by the courts below. Heard learned counsel for the rival parties. It is not in dispute that none of the parties relied on any revenue documentary evidence for showing the way over Dhura of survey no.28 belonging to the appellants-plaintiffs. Since according to the plaintiffs, there was no such right of way over Dhura there was no question of plaintiffs bringing on record any such revenue entries or revenue records but then the courts below have criticised the appellants-plaintiffs for claiming negative declaration. When it was the case of the plaintiffs that there was no way over Dhura of the plaintiffs, the plaintiffs obviously required an order of injunction against the defendants which cannot be described as 'negative declaration'. Be that as it may.

4. Upon perusal of the evidence and judgments of the courts below, it appears that they relied upon village map Exh.50 and oral evidence of both the parties and the report of Commissioner-Lawyer appointed by the court. In my opinion, the said report of Commissioner-lawyer could not be a substitute for the authentic proof of right of way. However, the village map Exh.50 having been perused by the courts below, both the courts felt sympathy for the defendants that they were required to approach their field by the alternate long way suggested by the plaintiffs from Ambada-Irur and Malkapur-Irur and C-Class land showed in the said map Exh.50. No easementary right under Easement Act was even set up before the civil Court. In the absence of existing right of way or in the absence of legal right in respondents-defendants, even by way of prescription under Easement Act, merely because it was convenient for them to use the said way, I am afraid the Civil Court could not have converted sympathy into creation of way over Dhura of field no.28 belonging to the appellants-plaintiffs. The courts below even have gone to the extent of saying that some witness stated that the said way from Dhura of survey no. 28 was being used for six years and some witness stated that it was being used for more than 20 years