JUDGMENT : By this Appeal filed under Section 100 of the Civil Procedure Code, 1908, the appellants-defendants have impugned the judgment and order dated 1st April, 2013 passed by learned Ad-hoc District Judge-III, Washim thereby allowing Regular Civil Appeal No. 136 of 2010 filed by appellants-plaintiffs. By allowing the said Appeal the learned first Appellate Court had partly decreed the R.C.S. No. 06 of 2008 (old R.C.S. No. 91 of 2007) and appellants-defendants herein are restrained by decree of perpetual injunction from interfering in the possession of the respondents-plaintiffs over their fields prescribed in Part-1 of the plaint. 2. The parties in the judgment are described as per their original status in the proceedings before the learned trial Judge. 3. The relevant facts for the purpose of deciding this Appeal are as under: Plaintiffs and defendants are agriculturists and having their lands adjacent to each other. Survey No. 33/1 situate at mouje Talap-Budruk is owned by plaintiff No. 2 while survey No.28/1 and 27/1 are owned by plaintiff No.1. Defendant No.1 is owner of survey No. 27/2 and 25/1 whereas defendant No.2 is owner of survey No. 27/3. Similarly, defendant No.4 is owner of survey No. 27@2v- All the defendants are closed relatives. 4. According to plaintiffs, there is neither cart way nor foot way through suit lands so as to access or approach the fields of defendants. The defendants being of quarrelsome nature, they filed a false application before Tahasildar claiming their right of way through the suit lands but by order dated 28th August, 2007 and after Spot Inspection and considering the report of Talathi and Circle Officer, the Tahasildar found that there is no such way as claimed by the defendants. 5. The plaintiffs alleged that not only the defendants are obstructing and creating interference in their peaceful possession over the suit lands but also caused damage to udid and Turi crops and thereby further caused damage in the sum of Rs.21,000/-. Therefore, the suit for perpetual injunction and damages. 6. Defendant Nos. 1, 2, 4 and 5 resisted the Suit by filing their joint written statement (Exh.11). At the outset, they admitted the ownership and locations of the landed properties belonging to both the parties. However, they denied that there is no cart way or foot way through the suit lands. They further denied the alleged damages claimed by plaintiffs. 7. 1, 2, 4 and 5 resisted the Suit by filing their joint written statement (Exh.11). At the outset, they admitted the ownership and locations of the landed properties belonging to both the parties. However, they denied that there is no cart way or foot way through the suit lands. They further denied the alleged damages claimed by plaintiffs. 7. By way of additional written statement, according to defendants, originally all the lands belonged to one joint family. Since the time of their forefathers defendants are using the suit lands while approaching their lands, inasmuch as there is no other way. 8. According to defendants, the Order passed by the Tahasildar is in ignorance of law and the same has been assailed before the Sub Divisional Officer, Mangarulpir. If any Order of perpetual injunction is passed against them, they would be put to an irreparable loss and therefore, prayed for dismissal of the suit. 9. Learned trial Judge on the basis of pleadings of both the parties framed six issues and after considering oral and documentary evidence laid by parties dismissed the Suit with costs vide Order dated 29th October, 2010. 10. Being aggrieved by the judgment and decree dated 29th October, 2010 passed by learned Civil Judge, Junior Division, Manora, the plaintiffs preferred Regular Civil Appeal No. 136 of 2010 in the Court of Ad-hoc District Judge-III, Washim. The first Appellate Court also framed six points for determination and by judgment and order dated 1st April, 2013 allowed the Appeal. Being aggrieved by the said judgment and decree dated 1st April, 2013, the defendants have filed the present second Appeal. 11. By an Order dated 13th June, 2014 this Court admitted this Appeal on the following Substantial Question of Law: “Whether the Lower Appellate Court committed an error in holding that there was a cart way, i.e., through Nullah, for the appellants to approach their field, ignoring the material evidence of the previous owner DW 5-Jairam Patil about the existence of the way for number of years in the past?” 12. Mr. Dhengale, learned Counsel for the appellants, submits that the learned Appellate Court failed to consider the documentary evidence particularly the map (Exh. 111) showing the way which is being used by the appellants since long. The Appellate Court ought to have considered the map (Exh. Mr. Dhengale, learned Counsel for the appellants, submits that the learned Appellate Court failed to consider the documentary evidence particularly the map (Exh. 111) showing the way which is being used by the appellants since long. The Appellate Court ought to have considered the map (Exh. 111) drawn by Circle Inspector on 7th June, 2008 since at the time of spot inspection all the parties were present. Although, according to learned Counsel, the Collector pursuant to the order passed by the Tahasildar and Sub Divisional Officer had given findings about the non existence of any way but on being assailed the order of Collector, the Divisional Commissioner returned findings in their favour. Learned Counsel also pointed out that the order of the Commissioner, Amaravati Division was assailed by filing Writ Petition No. 1015 of 2021 by the plaintiffs but the same came to be dismissed by this Court (Coram: N. B. Suryawanshi, J.) on 17th August, 2021. Thus, for all the aforesaid reasons the Appeal deserves to be allowed, argued learned Counsel. 13. Mr. Paliwal, learned Counsel for respondents, on the other hand, would support the impugned judgment and order of the Appellate Court. According to learned Counsel, the defendants have absolutely failed to prove that they are using any foot way or cart way through the suit lands since the time of their forefathers. Since there is proper appreciation and marshaling of evidence, no interference is called for at the hands of this Court, argued learned counsel. 14. Having perused the record and heard the learned Counsel for the parties, it appears that the defendants are claiming easementary rights of access through the suit lands of plaintiffs so as to approach and cultivate their respective lands. The defendants have come with a very specific case that the suit lands and their lands once upon a time had been a joint family property till the time of its partition and even after a partition the suit lands were used to approach their respective lands as there is no other way to approach their lands. Both the parties have laid evidence in respect of their respective claims. 15. Plaintiff-Vishwambhar Bapurao Ingole (PW-1) has adduced evidence (Exh. 78) by way of affidavit and reiterated the plaint averments. Both the parties have laid evidence in respect of their respective claims. 15. Plaintiff-Vishwambhar Bapurao Ingole (PW-1) has adduced evidence (Exh. 78) by way of affidavit and reiterated the plaint averments. However, in the cross-examination, he has denied the suggestion that he and defendants’ father were from one family and that since the time of their forefathers the defendants have their rights of way through their suit properties. Pertinently enough, neither in the plaint nor in the evidence it is made clear by plaintiff (PW 1) as to which way is being used by the defendants in order to have access to their agricultural land. Admittedly, the suit properties and agricultural lands of the defendants are adjoining each other and this being so, the plaintiff (PW-1) ought to have stated as to the way used by the defendants. 16. Another interesting aspect is the specific denial of PW-1 that the suit properties and the lands of defendants once upon a time were joint family properties. Much to the embarrassment of PW-1, PW-3 Baliram Damadu Chakranarayan (Exh. 91) in his cross-examination stated that the suit properties are the ancestral properties of the father of plaintiffs and defendants. This material piece of evidence is in direct conflict with denial of PW-1. 17. Although, PW-2 Bhaurao Ratna Rathod (Exh. 88) has supported the version of PW-1 but in the cross-examination he admitted that he can only write to the extent of putting his signature and that he had signed the affidavit on the say of plaintiffs. He does not know as to whose signature in affidavit bears and at what place the same was written. 18. PW-3 Baliram Damadu Chakranarayan stated that there was no right of way through the suit lands and in order to approach to their lands, the defendants after using road Talap to Yashwantnagar they approach their lands by foot way from Yashwantnagar to Ramtirth. But, again this material fact is nowhere revealed by PW-1 himself. 19. Defendant No.1, namely, Dattaram Namdev Ingole (DW-1), on the other hand, testified himself (Exh. 97) on behalf of all the defendants and reiterated the contents of the written statement. Except general denial there is nothing in his cross-examination. 20. DW-2 Waghji Hona Jadhav (Exh. But, again this material fact is nowhere revealed by PW-1 himself. 19. Defendant No.1, namely, Dattaram Namdev Ingole (DW-1), on the other hand, testified himself (Exh. 97) on behalf of all the defendants and reiterated the contents of the written statement. Except general denial there is nothing in his cross-examination. 20. DW-2 Waghji Hona Jadhav (Exh. 98) although supported the case of defendants but in the cross-examination, which is noted by the learned Appellate Court and as also pointed out by learned Counsel for the respondents, this witness stated that beyond nullah there is survey No. 21 belonging to Santosh, Sopan, Dattaram and Gajanan. He further stated that in order to cultivate survey No. 21 one is required to pass through Yashwantnagar. However, this witness in para 5 of his cross-examination denied that since beginning defendant Nos. 1 to 5 are using the road of Yashwantnagar. He further denied that the right of way through suit lands was never available to defendants. Thus, in the light of cross-examination it is wrong to say that this witness has admitted that it was only through survey No. 21 defendants used to approach their agricultural lands. There are other witnesses who throw ample light in support of the claim of defendants. 21. DW-4 Arun Balwant Shere (Exh. 156) has also supported the case of defendants and remained intact in the cross-examination. Now, comes the crucial witness, namely, DW-5 Jairam Sakharam Patil (Exh. 157). 22. DW-5 stated in his evidence that he knows parties to the suit and also knows about the suit properties situated at Talap Budurk. According to him, survey No. 28/1 originally belonged to his joint family and many years ago his father had sold this land to deceased Bapurao Ingole i.e. father of plaintiff No.1. It is his further evidence that he is a resident of village Karkheda and used to come up to survey No.33/1 from Karkheda Gaothan through government road and survey No. 33/1 belonged to Chintaman Patil which was later on purchased by plaintiff No.2 Laxmanrao Ingole. Similarly, according to him, the defendants in order to cultivate their survey No. 27/2 and 27/3 used to pass through survey No. 28 and then to survey No. 27/1, 27/2 and 27/3 and used to cultivate uninterruptedly and since the time immemorial. Similarly, according to him, the defendants in order to cultivate their survey No. 27/2 and 27/3 used to pass through survey No. 28 and then to survey No. 27/1, 27/2 and 27/3 and used to cultivate uninterruptedly and since the time immemorial. His further evidence is that till the time he was owner of survey No.21 the defendants used to access their lands through survey No. 28 and even after selling the said land they continued till the sowing season of 2007. 23. DW-5 being vendor of the plaintiffs, in my considered opinion, is the best available witness on record who has thrown ample light as to easementary right of way of the defendants in order to cultivate their respective lands. According to this witness, the defendants used to pass through survey No. 28 till the time the said survey number was transferred to deceased father of the plaintiff No.1 and even thereafter until the sowing season of 2007 they used the said right of way to cultivate their lands uninterruptedly. It may be noted here that the defendants for the first time complained obstruction in their use of way at the hands of plaintiffs in the year 2007 only. This material piece of evidence, however, has been overlooked by the learned Appellate Court on flimsy grounds. 24. The other witnesses, namely, DW-6 Shaligram @ Shalik Ramsing Rathod (Exh. 158), DW-7 Dipak Pandurang Manwar (Exh. 159), DW-8 Sopan Namdevrao Ingole (Exh. 160) and DW-9 Narendra Rangrao Deshmukh (Exh.161) have unisonly supported the case of defendants. They could not be impeached their respective cross-examination. 25. From the above discussion, it is more than clear that not only the DW-5 vendor of plaintiff No.1 but the adjoining owner of the fields of plaintiffs and defendants have clearly deposed about the use of way by the defendants through the suit lands. In my considered opinion, the learned Appellate Court committed grave error ignoring the material evidence of previous owner, namely, DW-5 Jairam Patil, therefore, the impugned judgment and order cannot be sustained and is liable to be interfered with. 26. Therefore, in view of above discussion, the substantial question of law formulated by this Court is answered in the affirmative. 27. For the aforesaid reasons, I pass the following order: ORDER 1. Second Appeal No. 259 of 2013 is allowed. 2. 26. Therefore, in view of above discussion, the substantial question of law formulated by this Court is answered in the affirmative. 27. For the aforesaid reasons, I pass the following order: ORDER 1. Second Appeal No. 259 of 2013 is allowed. 2. The impugned judgment and order dated 1st April, 2013 in Regular Civil Appeal No. 136 of 2010 passed by learned Ad-hoc District Judge-III, Washim is quashed and set aside and judgment and order dated 29th October, 2010 passed in R.C.S. No. 6 of 2008 (Old R.C.S. No. 91 of 2007) by learned Civil Judge, Junior Division, Manora, District-Washim is confirmed. 3. However, there shall be no order as to costs. 4. In view of disposal of Second Appeal nothing survives in the Civil Application No. 519 of 2013 and stands disposed of accordingly.