JUDGMENT : Though this matter is listed for admission today, with the consent of both the learned counsel it is taken up for final disposal. 2. Heard the learned counsel appearing for the appellants/defendants and the learned counsel appearing for respondent No.1(1)/plaintiff. 3. This appeal is filed challenging the judgment and decree dated 16.04.2019 passed in R.A.No.126/2012 on the file of the I Additional Senior Civil Judge, Mangaluru, D.K. 4. The factual matrix of the case of the plaintiff before the Trial Court is that her vendors had granted the easement right to draw water from the well and also a right to approach road in order to take the water from the well and exclusive possession and enjoyment of ‘A’ schedule property of the plaint and the defendants are causing interference in respect of availing the water from the well and also causing obstructions to the pathway. Immediately within three days of filing the suit, the defendants highhandedly and illegally constructed a compound wall blocking the pathway leading to the well and there is an obstruction to get the benefit as mentioned in the Sale Deeds. Hence, sought for the relief of mandatory injunction to remove the obstruction. 5. The defendants in pursuance of the suit summons had appeared and filed the written statement contending that the first defendant is not the owner or occupier of the property in question. The second defendant is the brother-in-law of first defendant, who is the Deputy General Manager of Canara Bank at Bengaluru. He has not interfered with the alleged rights of the plaintiff. The wife of the first defendant is the owner of the site immediately to the north of the plaintiff’s property. The second defendant is the owner of the site on the west of the plaintiff’s property. The plaintiff is a Mulagenidar of ‘A’ schedule property and hence she cannot assert easement right over the property of second defendant who is the owner of property purchased by him as per Sale Deed dated 18.09.1993. However, the defendants admit the existence of the well but deny the right of the plaintiff to draw water from the well. The second defendant does not admit the alleged easement right of the plaintiff over the well and pathway and denied the contention of the plaintiff. 6. However, the defendants admit the existence of the well but deny the right of the plaintiff to draw water from the well. The second defendant does not admit the alleged easement right of the plaintiff over the well and pathway and denied the contention of the plaintiff. 6. The plaintiff in order to prove her contentions examined the power of attorney holder as P.W.1 and got marked the documents as Exs.P1 to P10. On the other hand, the second defendant examined himself as D.W.1 and got marked the documents as Exs.D1 to D5(a). 7. The Trial Court after considering both oral and documentary evidence available on record, allowed the suit and directed the defendants to remove obstruction caused to the pathway passing through the property of second defendant, leading to the Well situated in his property within three months from the date of its judgment and also restrained from blocking or interfering with the use and enjoyment of the pathway leading to the well and drawing water from the well. Being aggrieved by the judgment and decree of the Trial Court, the defendants had filed an appeal in Regular Appeal No.126/2012 before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and also the grounds urged in the appeal formulated the points viz., whether the defendants have made out sufficient grounds to allow the appeal and whether the judgment of the Trial Court is illegal, capricious and opposed to law and answered both the points as negative and concurred with the findings of the Trial Court. Hence, the present second appeal is filed before this Court. 8. The main contention of the learned counsel appearing for the appellants is that they are not disputing the right given to the plaintiff for using the well. But learned counsel would vehemently contend that the well is situated by the side of the road and no need to come through the land of the defendants and there is a separate access to the well and these defendants have not caused any obstruction to avail the water from the well. But learned counsel would vehemently contend that the well is situated by the side of the road and no need to come through the land of the defendants and there is a separate access to the well and these defendants have not caused any obstruction to avail the water from the well. The learned counsel also would vehemently contend that the easement of necessity extinguished on account of proving alternative pathway by the respondent-vendor and the Trial Court ought not to have granted the relief of mandatory injunction and also based on the ex-parte report of the Court Commissioner, the Trial Court granted the relief as sought by the plaintiff and even the plaintiff has not been examined; only the power of attorney has been examined before the Trial Court and the Trial Court has committed an error in decreeing the suit. 9. The learned counsel appearing for the appellants would vehemently contend that the First Appellate Court has not appreciated the material available on record with proper perspective. When there was an alternative road available to access the well, the First Appellate Court ought not to have granted the relief and there are substantive questions of law to frame the same and to consider the matter. Hence, both the Courts have committed an error. 10. Per contra, learned counsel appearing for respondent No.1(1) would submit that the plaintiff is not seeking any relief of easement right based on the prescription on the ground that there is no any alternative pathway but right is given under the Sale Deeds itself which are marked as Exs.P5 and P6. The learned counsel also would submit that clause No.7 is very clear with regard to the right given to access the well as well as use the pathway with minimum distance and also it is brought to the notice of the Trial Court that immediately after filing of the suit, the compound wall was constructed. 11. The learned counsel also brought to the notice of this Court that the Commissioner was appointed and the Commissioner also given a report stating with regard to the existence of well and pathway and also the erection of compound wall and no objection was filed to the Commissioner’s report. Now cannot contend that the Commissioner report is an ex-parte report. Both the Courts have considered the material available on record and not given any perverse finding. Now cannot contend that the Commissioner report is an ex-parte report. Both the Courts have considered the material available on record and not given any perverse finding. Only in a concurrent finding if both the Courts have not considered the material available on record and a perverse finding is given then the Court can exercise the jurisdiction invoking Section 100 of CPC. Hence, no grounds are made out to invoke Section 100 of CPC. 12. Having heard the respective counsel and also on perusal of the material available on record, there is no dispute with regard to the fact of existence of well and that the right of pathway was given in terms of the documents - Exs.P5 and P6. It is also not in dispute that the plaintiff and defendants have purchased the property from the vendors of plaintiff. The vendors are common. The learned counsel appearing for the plaintiff brought to the notice of this Court that the Sale Deed executed in favour of the plaintiff is earlier Sale Deed and subsequently, the defendants purchased the property. There is a force in the contention of the learned counsel for the plaintiff that when the right is given under the Sale Deed to access the well and use the pathway and the fact that the defendants have constructed a compound in causing obstruction is also noticed by the Court Commissioner. Admittedly, the defendants have not filed any objections to the Commissioner report and now cannot contend that the report is an ex-parte report and both the Trial Court as well as the First Appellate Court taking into note of both oral and documentary evidence as well as the report of the Court Commissioner came to the conclusion that defendant No.2, particularly causing obstruction to access the well and using the pathway. The Clause No.7 is very clear that the pathway is at the minimal distance. When such being the material available on record when the right is given under the documents in terms of Exs.P5 and P6, the causing of obstruction by the defendants is nothing but preventing the plaintiff in availing the water from the well and approaching the well in a minimum distance. When such being the material available on record when the right is given under the documents in terms of Exs.P5 and P6, the causing of obstruction by the defendants is nothing but preventing the plaintiff in availing the water from the well and approaching the well in a minimum distance. When such being the material available on record and when both the Courts have applied their mind and given the finding based on both oral and documentary evidence as well as the Commissioner report, the very finding cannot be termed as perverse in nature. The contention of the learned counsel appearing for the appellants is that the ex-parte report of the Commissioner was relied upon by the Trial Court as well as the First Appellate Court cannot be accepted. The First Appellate Court also on re-appreciation of the evidence available on record, particularly the issues and the additional issues, which have been framed by the Trial Court and answered the same as affirmative. The First Appellate Court on the basis of the grounds urged in the appeal memo, formulated the point Nos.1 and 2 and answered the same as negative and not find any error committed by the Trial Court in coming to such a conclusion that the obstruction was caused to the plaintiff’s right, which has been confirmed as per Exs.P5 and P6. 13. I have already pointed out that the defendants have not dispute the fact that the right was confirmed as per Exs.P5 and P6 by the vendors of the plaintiff and the document also reveals the same and rightly pointed out by the learned counsel appearing for the respondent that it is not a right of prescription and right was given under the documents-Exs.P5 and P6. When such being the material available on record, I do not find any grounds to frame any substantial questions of law and the material on record only appreciated by the Trial Court that too particularly the documentary evidence available on recordExs.P5 and P6. Hence, no grounds in the second appeal to frame substantial questions of law and admit the appeal. 14. In view of the discussions made above, I pass the following: ORDER : The appeal is dismissed. In view of dismissal of the appeal, I.A.No.1/2020 for stay does not survive for consideration, the same stands disposed of.