Hon'ble VYAS, J.—Instant second appeal has been filed under Section 100, C.P.C. against the judgment and decree dated 10.4.2010 passed by the District Judge, Rajsamand in Civil Appeal No. 2/2008 whereby the appellant Court upheld the judgment and decree dated 15.11.2007 passed by the Civil Judge (Jr. Dn.) Rajsamand in Civil Suit No. 104/2003, by which, the trial Court dismissed the suit filed by the appellant on the ground of easementary right for permanent injunction and declaration. 2. Brief facts of the case are that a suit was filed by the appellant-plaintiff with the pleading that his land measuring 3 bigha 17 biswa is situated in araji No. 1618, 2201, 2211, 2213, 2212, 2215, 2216 and 2230. In between araji No. 2211 to 2213, there was public way in the land of respondent-defendants situated in agricultural araji No. 1620. As per assertion made by the plaintiff he is regularly using the said way and bringing agricultural kinds by means of cattle-cart and tractor and said way is in existence for last many years which he is using since then. 3. According to the plaintiff-appellant, the way is 15 ft in breadth and 15 days before the defendants tried to create obstruction in the way and upon asking by the plaintiff the defendants threatened that they will not allow any person to use their way situated in araji No. 1620. The plaintiff-appellant filed suit for declaration that on the basis of easementary right the way in question may be allowed to be used by the plaintiff and agriculturists and the defendants may be restrained from creating hurdle in the way and from closing the way which is in existence for long time. 4. The respondent-defendants filed written-statement to the suit and submitted that the fact of public way of 15 ft breadth is totally false and there is no question of easementary right of the plaintiff; in fact, it is not possible to transport the agricultural kinds on cattle-carts because due to hard surface upon the land in question. It is also submitted that there is already a way in existence for reaching the agriculture fields of plaintiff and some other agriculture fields and plaintiff himself is using the said way, therefore, no case is made out for easementary right of the plaintiff and suit of the plaintiff may be dismissed. 5. After filing written-statement, rejoinder was filed by the appellant-plaintiff. 5. After filing written-statement, rejoinder was filed by the appellant-plaintiff. Therefore, following two issues were framed by the trial Court. ^^1- D;k xzke lkaxB dyka esa oknh ds LokfeRo vkf/kiR; dh [kkrsnkjh Hkwfe esa vkus tkus dk ,d ek= jkLrk vkjkth ua- 1620 esa ls gksdj tkrk gS vkSj bl jkLrs dk oknh dks lq[kkf/kdkj izkIr gks x;k gS vkSj vc izfroknhx.k bl jkLrs dks cUn djuk pkgrs gSa ftldk mUgsa dksbZ vf/kdkj ugha gSa\ 2- vuqrks"k** 6. After framing the above issues statements of 4 prosecution witnesses PW.1 Kishan Singh, PW.2 Kishan Lal, PW.3 Naru @ Narayan Lal and PW.4 Shanker Lal were recorded and 15 documents were exhibited from the side of the plaintiff and statements of 3 witnesses were recorded and 12 documents were exhibited from the side of the defence. After taking into consideration entire facts, the Trial Court while giving specific finding that the appellant-plaintiff has failed to prove its case by leading cogent evidence dismissed the suit. The said judgment was challenged by the appellant-plaintiff by way of filing appeal and, in appeal, the District Judge, Rajsamand dismissed the appeal filed by the appellant and upheld the judgment and decree vide the impugned judgment. Both these judgments are challenged by the appellant-plaintiff in this second appeal. 7. Learned counsel for the appellant submits that there was no issue for the Court with regard to existence of alternate way in the southem side of the property in question; but, totally perverse finding is given by the Trial Court that there is alternate way in existence and, that too, without framing any issue, therefore, there is substantial question law involved in this second appeal that without framing an issue no finding can be given. Secondly, it is submitted that the Trial Court wrongly relied upon the report of the commissioner which related to different litigation, therefore, without recording statement of the commissioner the finding given by the Trial Court while considering the report of the commissioner is not tenable in law. 8. Secondly, it is submitted that the Trial Court wrongly relied upon the report of the commissioner which related to different litigation, therefore, without recording statement of the commissioner the finding given by the Trial Court while considering the report of the commissioner is not tenable in law. 8. Learned counsel for the appellant submits that it was the duty of the Court to frame proper issues and adjudicate the matter properly but it has not been adjudicated properly and without considering the evidence available on record in right perspective the Trial Court has proceeded to decide the matter, therefore, it is apparent that finding given by the Trial Court is totally perverse and based upon non-consideration of proper evidence which is available on record. Learned counsel for the appellant invited my attention towards the fact that the Trial Court and first appellant Court gave finding that there is no evidence on record to show that the public way in existence from last 20 years and as per Section 15 of the Easementary Act the plaintiff is enjoying thee way without interruption, therefore, no easementary right is created in favour of the plaintiff-appellant; but this fact is totally erroneous because in all the affidavits it is categorically proved by the plaintiff-appellant that public way is in existence for last many years, therefore, the reason for discrediting the said evidence solely on the ground that "20 years" is not mentioned in any of the statements is totally perverse finding, therefore, this appeal may be admitted and substantial questions of law may be framed for consideration. 9. In support of his arguments, learned counsel for the appellant invited attention of the Court towards following judgments: (1) (2002) 7 SCC 441 (2) 2008(1) SCW 463 (3) 2007(4) SCW 4002 (4) AIR 1977 Madras 225 (5) AIR 1921 Lahore 128 (6) (2005) 12 SCC 186; and (7) AIR 1983 Orissa 42. 10. Learned counsel for the appellant while relying upon the above judgments admits that as per above judgment admits that as per the above judgments if any decree is passed without (attention) of mind it is required to be quashed. Further, it is submitted that in view of the judgments reported in 2008(1) SCW 463 and 2007(4) SCW 4002, the Trial Court as well as appellate Court misread the document which, too, is an illegality. Further, it is submitted that in view of the judgments reported in 2008(1) SCW 463 and 2007(4) SCW 4002, the Trial Court as well as appellate Court misread the document which, too, is an illegality. With regard to duty of the appellate Court to assess the evidence in proper manner, Learned counsel for the appellant placed reliance upon judgments (2005) 12 SCC 186 and AIR 1983 Orissa 42; and, for the purpose of not accepting the commissioner's report, learned counsel for the appellant invited attention towards judgment reported in AIR 1980 Orissa 98. 11. After considering the entire facts of the case and perusing the impugned judgments, I am of the opinion that the Trial Court thoroughly discussed the statements of the prosecution witnesses and gave categorical finding that the appellant has not proved that he is using the way for last 20 years; more so, there is clear finding that there is no public way of 15 ft. breadth but only a "pagdandi" which cannot be termed as way for the purpose of creating easementary right in favour of the appellant. Learned Trial Court observed that commissioner's report cannot be discarded, so also, the appellant-plaintiff himself has not disputed the commissioner's report. Therefore, in my opinion, at this stage the finding of fact arrived at by the Trial Court and affirmed by the first appellate Court with regard to application of Section 15 of the Act cannot be said to be perverse or illegal. 12. I have gone through the photographs relied upon by learned counsel for the appellant. Upon scanning the same, the contention with regard to existence of way 15 ft in breadth is not tenable. Therefore, it appears that the appellant-plaintiff has miserably failed in establishing the fact that there is way which he is using for last 20 years in accordance with Sec. 15 of the Indian Easementary Act. In my opinion, the judgments cited by learned counsel for the appellant are not at all applicable to the facts of the present case because the Trial Court as well as appellate Court considered the entire evidence and gave finding that the appellant-plaintiff has failed to establish his case with regard to using the public way upon which easementary right is created in his favour. 13. 13. In this view of the matter, it cannot be said that the finding given by the Trial Court while considering the commissioner's report warrants any interference in this appeal. Therefore, no substantial question of law arises for consideration in this second appeal. 14. Hence, this second appeal is hereby dismissed.