The plaintiff must prove the existence of an alternative right of way; failure to do so results in upholding the Trial Court's ruling.

1. Heard finally with the consent of learned counsel appearing for the parties.

2. This second appeal is preferred against the Judgment and Decree passed by the Additional District Judge, Gadchiroli in Regular Civil Appeal No.12/1999 dated 17/12/2005. The said appeal was filed against the Judgment and Decree passed by the Civil Judge, Junior Division, Armori, Dist. Gadchiroli in Regular Civil Suit No.30 of 1994 dated 16th April, 1999. It was suit for perpetual injunction. The parties are referred to their original status in the suit.

3. The factual matrix :-

The agricultural land bearing Survey No.118/3 situated at village Deloda - Khurd, Tah. Armori, Dist, Gadchiroli owned by the plaintiff is the subject matter of the suit. The plaintiff claims that the defendants brothers are the owners and possessors of their agricultural lands bearing Survey Nos.120 and 127 which are adjacent to the suit property. They are claiming that they have right of way through the suit property. Therefore, the plaintiff filed suit for perpetual injunction that defendants shall not use the suit property as a way to ingress and egress to their agricultural lands.

4. The defendants defence is that their agricultural lands bearing Survey Nos.120 and 127 are allotted to them in the partition which took place between them and their brother Laxman. Laxman got Survey No.119 in that partition which is adjacent to the suit property. The defendants and Laxman were using the suit property as and when required to go to their agricultural land as a way. It is only way available to them. The plaintiff has never objected Laxman who is using suit property to ingress and egress to his agricultural land Survey No.119. Their father Devaji Raut was using that right of way through suit property. He was never objected by plaintiff. The defendants have not caused any damage to the suit property. The suit is filed with a political motive. It is lastly prayed to dismiss the suit with costs.

5. The learned Trial Court dismissed the suit and held that the plaintiff failed to prove that there is alternative right of way to the lands of defendants through Survey Nos.1, 3 and 8.

6. The learned First Appellate Court set aside the Judgment and decree of Trial Court. It held that there is existence of alternative way as contended by plaintiff and the defendants have no right of way through the suit property. The appeal was allowed. The suit was dismissed.

7. The substantial questions of law for the decision of this appeal are as under :-

(i) “Was it proved by the plaintiff that there is existence of alternative right of way to the defendants from the boundary of Survey Nos.1, 3 and 8 ?

(ii) Is the decision of First Appellate Court legal, correct and requires any interference ?”

8. Learned Advocate for the defendants pointed out the certified copy of map Exh.-24 filed by the plaintiff along with the suit which was issued by the Talathi of the village in which right of way is shown by dotted line. Laxman is using the suit property as way to reach his land Survey No.119 which is adjacent to the suit property. It is not objected by the plaintiff. This fact is admitted by the plaintiff in his cross-examination. The plaintiff’s documentary evidence i.e. map Exh.-24 corroborates the defendant’s stand that there is way through suit property. The right of way i.e. Wazib-ul-urz is recognized for the entire village Deloda Khurd. The defendants right of way which is also proved by the Wazib-ul- urz Exh.-50 the customary right. The reasons of the first Appellate Court particularly para in between 11 and 12 are not legal and correct. It is lastly prayed to allow this appeal.

9. Learned Advocate for the plain