JUDGMENT Surinder Sarup, J.:- This order will dispose of CMP No. 298 of 1999 and in consequence thereof Regular Second Appeal No. 16 of 1991. 2. Briefly, facts are that the plaintiff-appellant filed a suit for declaration as well as permanent and mandatory injunction as for back as the year 1982 on the pleadings that he is the owner of the house and shop situated in Khata No. 225, Khatauni No. 478, Khasra No. 176 in Mohal Sadarpur Mauza Rajiana, Tehsil and District Kangra and has a right of ingress Sand egress for himself and his customers through the open and vacant land between his shop and the hospital read of the defendants as shown by the letters A, B, C and D (Khasras No. 146 and 147) in the site plan attached with the plaint, for ever 25 years I without any interruption as a right of easement of necessity and custom. 3. The suit was of course contested by the defendants,- including defendant No. 2 the State of Himachal Pradesh. Ultimtely, the suit was dismissed by the learned trial Court i.e. Sub Judge 1st Class, Kangra vide his judgment dated 26.2.1986, whereby it was held that the plaintiff was not found entitled to either easement of necessity or acquisition of right by way of prescription or even as to any customary right over khasras No. 146 and 147. Obviously, the plaintiff filed an appeal, which unfortunately for him was also dismissed by the lower appellate court of the learned Additional District Judge (I), Kangra at Dharamshala by judgment dated 24.10.1990. Hence the present second appeal out of which the said application arises. 4. The application has been filed under Order 23 Rule 1 read with Section 151 of the Code of Civil Procedure for permission to withdraw the suit with liberty to file a fresh suit on the same cause of action, if need be with regard to the claim of right of passage. The ground taken therein is that the first appeal of the plaintiff was dismissed by the lower appellate court while holding that his claim for easement had not been established as the statutory period of 30 years of user as of right of the passage in question without interruption had not elapsed at the time of filing of the suit. The ground taken therein is that the first appeal of the plaintiff was dismissed by the lower appellate court while holding that his claim for easement had not been established as the statutory period of 30 years of user as of right of the passage in question without interruption had not elapsed at the time of filing of the suit. In the reply filed to the application the prayer for withdrawal of the suit under Order 23 Rule 1 CPC is being opposed by the defendants- respondents mainly on the plea that the suit of the plaintiff- applicant has been dismissed by both the courts below on arising at definite finding on questions of fact. 5. The learned Counsel for the parties have been heart at length. It would be relevant to mention here that during the pendency of the appeal in this court vide an order dated 23.4.1998, a Local Commissioner was appointed to go that spot and not only to carry out demarcation, but also after making his personal observations and considering the suggestions and counter-suggestions of both the parties, also to find out a vis-media for the access of the plaintiff-1 appellant to his residential-cum-shop premises through the passage which is really in use. In consequence thereof, the Local Commissioner went to the spot and thereafter submitted his report. On the basis of his spot observations etc. he concluded that there exists no other path either in the revenue record or at the spot for the ingress and egress to the residence-cum-shop of the plaintiff-appellant except the approach from the land comprised in Khasras No. 146 and 147 which admittedly is the hospital road of the defendants. 6. In so far as the ground taken in the application under Order 23 Rule 1 CPC is concerned, a perusal of the judgment of the lower appellate court indicates that the plaintiff has knocked the door of the civil court on basis of three alleged rights to the disputed passage, namely, that he has a right of easement on the ground of prescription, that he has not customary right to use the same and lastly that he has a right as an easement of necessity. As regards the right on the basis of prescription, in para 10 of the impugned judgment of the learned lower appellate Court, it is clearly indicated that the learned Counsel for the plaintiff, during the course of arguments did not seriously press for the easement on the ground of prescription. In other words, this right of passage has easement by way of prescription was not pressed before the learned lower appellant court, therefore, the same cannot be made all ground either to challenge the impugned judgment on merits in second appeal before this Court or for the purpose of withdrawal of the suit with liberty to file a fresh suit on the same cause of action. 7. As regards the other two rights, a perusal of the impugned judgment of the learned lower appellate court from paras 20 to 22 would show that he has come to the conclusion, after discussing and appreciating the evidence as well as the contention raised on behalf of the plaintiff- appellant before him through his learned Counsel, that from the evidence on record, the plaintiff has failed to prove that the alleged customary right was only existing in his favour independently of others. 8. Lastly, the learned lower appellate court has come to the conclusion that the plaintiff has not succeeded in bringing his case under Section 13(f) of the Easement Act. In para 25 of the impugned judgment, it is indicated that the plaintiff has failed to prove that the disputed land is a severed portion of the land owned by him, for which he claimed right of passage. In other words, he could not prove absolute necessity as required under this Section. The further claim therein is neither that the right of way has been expressly granted nor does it fall within the easement of necessity. 9. While coming to the above findings of fact, not only has the learned lower appellate court correctly appreciated the evidence but has also, it must be said to his credit, correctly applied the case law. The learned Counsel for the appellant before this Court has not been able to make out any ground for interference in second appeal, despite the extended nature of hearing granted to him on various dates. The learned Counsel for the appellant before this Court has not been able to make out any ground for interference in second appeal, despite the extended nature of hearing granted to him on various dates. In other words, what to talk of any substantial questions of law being involved in the main appeal, no question of law whatsoever requires to be determined or considered. 10. From the above circumstances, it can clearly be made out that the application under Order 23 Rule 1 CPC has been filed as a last resort to salvage some relief in the second appeal before this Court. It appears mentioning here that the application has been filed after the appeal had been more or less heard on merits. In the context of the above discussion, I find force in the submission of the learned Additional Advocate General appearing on behalf of defendant respondent No. 2 i.e. the State that no ground has been made out either for interference by this court in the main appeal, or even to allow the prayer for withdrawal of the suit under Order 23 Rule 1 of the Code of Civil Procedure, In this connection he has placed reliance on a decision of the apex Court reported as A Rathinaval Chettiar & Am v, V. Sivaraman & Ors., 1999(4) SRI 365. In the said case while imposing the question that can a decree be destroyed by making application for dismissing suit as not pressed and unconditionally withdrawing it at appellate stage, when decree passed by the trial Court was challenged in appeal, the same was answered by holding that it is not open to the plaintiff at that stage to withdraw the suit so as to destroy that decree. It has been further laid down by the apex Court that rights which come to be vested in parties to a suit under decree cannot be taken away by withdrawal of suit at the stage of appeal unless strong reasons are shown that such withdrawal would not affect or prejudice anybodys vested rights. Some what similar facts and circumstances obtain the present case also as set out in detail here-in-above. For the reasons recorded above, both CMP No. 298 of 1999 and R.S.A. No. 16 of 1991 are dismissed, but in the circumstances of the case, the parties are left to bear their own costs. Appeal dismissed.