JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 28.07.2012 passed by Additional District Judge, Nimbahera, District - Chittorgarh, whereby, the appeal filed by the respondent-plaintiff was partly allowed and judgment and decree dated 22.12.2005 passed by Civil Judge (Junior Division), Nimbahera was set aside. 2. The facts in brief may be noticed thus: the respondent-plaintiff filed a suit seeking declaration and permanent injunction on 06.07.2002 with the averments that land comprised in Aaraji No.327 admeasuring 10 Bigha 19 Biswa situated at Village Tai, Tehsil - Nimbahera was plaintiff's ancestral property, which was in plaintiff's and his family's possession for over 50 years and was being cultivated by them; the neighbouring Khasra numbers were 323 and 322. It was claimed that for going on to Aaraji No.327 plaintiff and other surrounding cultivators have got easementary right on the way indicated as A to B on the map annexed to the plaint; the way was very old and was in existence. It was alleged that the defendants were bent upon obstructing the said way and for that purpose on 28.06.2002 the defendants and their family members were obstructing the way by parking a Tractor and collecting agricultural goods and started abusing the plaintiff, regarding which the FIR was lodged and the defendants were bound by the Police; cause of action arose on 28.06.2002; the suit was within limitation and it was prayed that the defendants be restrained from obstructing the field in the annexed map marked as A to B and not to interfere with their easementary right; and if during the pendency of the suit, if by digging, the way is obstructed than by mandatory injunction, the same be got reopened and his easementary rights be declared. 3. A written statement was filed by the defendants on 14.08.2002, denying the averments contained in the plaint; existence of way was denied and it was indicated that alternative way was available and only on account of dispute with the defendants an illegal way has been sought to be created; on the south side of plaintiff's field, land belonging to his father was situated and he was utilising the way from the fields of his brothers Basantilal, Damarlal etc. It was claimed that the land earlier belonged to plaintiff's father and on account of partition, the same has come in the share of plaintiff and plaintiff was seeking to find alternative way for sake of convenience, no easementary right was available and two alternative ways were available. 4. On the pleading of the parties, the trial court framed eight issues. On behalf of plaintiffs, five witnesses were examined and five documents were exhibited. On behalf of the defendants, four witnesses were examined and five documents were exhibited. 5. After hearing the parties, the trial court came to the conclusion that as the partition deed was not produced, it was not established that the land comprised in Aaraji No.327 was owned by the plaintiff. The crucial issue Nos.2 and 5 regarding right of easement and availability of alternative way respectively were decided by the trial court holding that the plaintiff has an alternative way from the field of his father Nirbhya Ram and from the revenue record, it was not proved that the disputed way was in existence. The suit was held to be bad for misjoinder on account of not impleading the neighbouring Khatedars. Issue No.7 was also decided in favour of the defendants. It was required of the plaintiff to pay additional court fees for seeking declaration and, consequently, the trial court dismissed the suit. 6. Feeling aggrieved, the plaintiff filed first appeal; after hearing the parties, the learned first appellate court by its impugned judgment and decree dated 28.07.2012 came to the conclusion that as admittedly the plaintiff was in possession of Khasra No.327 and was cultivating the field, he was Khatedar of the said land and reversed the finding of issue No.1. 7. 6. Feeling aggrieved, the plaintiff filed first appeal; after hearing the parties, the learned first appellate court by its impugned judgment and decree dated 28.07.2012 came to the conclusion that as admittedly the plaintiff was in possession of Khasra No.327 and was cultivating the field, he was Khatedar of the said land and reversed the finding of issue No.1. 7. While dealing with crucial issue Nos.2 and 5, the first appellate court came to the conclusion that the field of plaintiff's brother Damarlal was next to the Pemadiya Khera way and to the south of Damarlal's field was plaintiff's other brother Basantilal's field and on further south was plaintiff's field but between Basantilal's and plaintiff's field there was a cemented channel and from Village - Tai plaintiff's brother Basantilal uses the Pemadiya Khera way but the same cannot be a reason to come to conclusion that the plaintiff can also use the same way as there was a permanent cement channel between the fields of plaintiff and his brother Basantilal, which is clear from the Commissioner Report and the oral evidence of the parties. So called alternative way suggested, was not available as per the Commissioner Report and the site map, which is divided by permanent cement channel. 8. The appellate court by relying on the statement of DW-4 Ram Chandra, who stated that the disputed way was in existence about 2-4 years back, which was blocked and agricultural operations were undertaken by defendant Chaturbhuj, which proved that immediately before filing of the suit, the way was in existence and was obstructed by the defendants, and based on evidence on record came to the conclusion that the plaintiff had easement of necessity and, consequently, passed the decree as noted hereinbefore. 9. It was submitted by learned counsel for the appellants that the learned trial court fell in error in coming to a conclusion that the plaintiffs had easement of necessity. The trial court had thoroughly considered the entire issue and the first appellate court was not justified in reversing the finding. It was submitted that in view of existence of alternative way, the first appellate court was not justified in coming to the conclusion that the plaintiff had easement of necessity. 10. Reliance was placed on the case of Rameshchandra Bhikhabhai Patel v. Maneklal Maganlal Patel : AIR 1978 Gujarat 62 . 11. It was submitted that in view of existence of alternative way, the first appellate court was not justified in coming to the conclusion that the plaintiff had easement of necessity. 10. Reliance was placed on the case of Rameshchandra Bhikhabhai Patel v. Maneklal Maganlal Patel : AIR 1978 Gujarat 62 . 11. It was further submitted that as the courts below have ignored material evidence and have gone wrong inference, substantial question of law does arise in the present case. Reliance was placed on the case of Kashmir Singh v. Harnam Singh & Anr., 2008 AIR SCW 2417 and Dubaria v. Har Prasad & Anr., 2009 AIR SCW 7261 . 12. Per contra, learned counsel for the respondent supported the judgment and decree passed by first appellate court. It was submitted that from the evidence available on record and the Commissioner Report, it was apparent that the disputed land was the only way available to the plaintiff and the alternative ways were merely by way of suggestion and were not in existence and, therefore, the first appellate court was justified in reversing the findings recorded by the trial court. It was further submitted that the trial court had dealt with the issue in a cursory manner and has not dealt with the oral and documentary evidence as such the appellate court was justified in reversing the same. 13. I have considered the rival submissions and gone through the judgments passed by both the courts below as well as record of the trial court and first appellate court. 14. From the judgment of the trial court, it is apparent that the trial court construed the pleading of the plaintiff in a very narrow manner, when it was claimed that the way was being used for a very long time i.e. over 50 years and the trial court by relying on a map dated 15.05.1954 came to the conclusion that the way was not in existence 50 years back and, where after without construing the oral and documentary evidence available on record reached a conclusion that as on the northern side of plaintiff's field was field of his brothers, he could utilise the said fields for using the Pemadiya Khera way, which was situated on the northern side of his brother Damarlal's field; no reference to any oral evidence was made. 15. 15. The first appellate court by the impugned judgment dealt with the oral and documentary evidence available on record and on analyzing the Commissioner Report (Ex.-4) and site map (Ex.-5) came to the conclusion that on account of existence of permanent water channel (Nahar) between plaintiff's field and that on his brother Basantilal's field, the disputed way was the only way available for ingress and egress for the plaintiff's field and, therefore he had easement of necessity. Further the oral evidence of DW-4, defendant's own witness was also relied on as the said witness admitted existence of the way just before filing of the suit and that the said way was obstructed by the defendants. As such, the appellate court was perfectly justified in coming to the conclusion that the plaintiff-respondent has easement of necessity. 16. The fact that suit was filed only against the appellant and not other neighbours of the field, which was held as non-joinder of necessary party by the trial court, suffice it to observe that the injunction was being sought against the appellants only as they were obstructing the field and not the other neighbours and, therefore, the other neighbours were not necessary parties. 17. In view of the above discussion, the finding recorded by the first appellate court regarding easement of necessity and non-availability of alternative way being findings of fact, does not involve any substantial question of law.In view of the above, the appeal has no substance and the same is, therefore, dismissed with costs.Appeal dismissed. *******