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TMI Blog2006 (5) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... Hero Vinoth (minor) Versus Seshammal ARIJIT PASAYAT R.V. RAVEENDRAN JJ. DATE OF JUDGMENT: 08/05/2006 JUDGMENT: ARIJIT PASAYAT, J. Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Madras High Court allowing the Second Appeal filed by the defendant i.e. respondent herein under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC'). Material facts in a nutshell are as follows : A suit was filed by the appellant as plaintiff for permanent prohibitory injunction to restrain the defendant from causing obstruction in plaintiff putting up compound wall in his portion of property bearing R.S. No.418/5, South Pidari Street, Seerkazi Town along the 'GH' line in the rough plan attached to the plaint. A Partition deed dated 23.11.1950 was executed among five brothers; Narayanaswami, Parangusa Chettiar, Purushothaman Chettiar, Radhakrishnan Chettiar and Aravamutha Chettiar. Under the said partition, 'C' Schedule items were allotted to Purushothaman Chettiar and 'E' schedule items were allotted to Aravamutha Chettiar. Under the said partition, a portion of property No.418 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thurai, but without success. In the second appeal filed by the defendant-respondent, the following questions were formulated as substantial questions of law arising for consideration: (a) Whether the courts below are right in giving a finding regarding extinguishment of ease mentary right without any pleading or evidence regarding the same? Whether the courts below are justified in presuming extinguishment when there is no pleading or evidence to what effect? (b) Whether the courts below are right in stating that to prove easement by prescription, it is necessary to show the existence of easement by necessity is a condition precedent to plead and prove easement by prescription? (c) Whether the courts below are erred in stating that the dominant tenement owner's right over servient tenement will get extinguished when the servient tenement's ownership transferred to another person by way of sale by servient owner? (d) Whether the courts below are correct in stating that the easement created got extinguished when there is no change in physical features of the property covered render that easement right as useless or unnecessary? The High Court noted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law. As was noted in Yadarao Dajiba Shrawane (dead) by Lrs. v. Nanilal Harakchand Shah (dead) and Ors. (2002 (6) SCC 404) if the judgments of the trial Court and the first Appellate Court are based on mis-interpretation of the documentary evidence or consideration of inadmissible evidence or ignoring material evidence or on a finding of fact has ignored admissions or concession made by witnesses or parties, the High Court can interfere in appeal. In Neelakantan and Ors. v. Mallika Begum (2002 (2) SCC 440) it was held that findings of fact recorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law justifying interference.([See: Kondiba Dogadu Kadam v. Savitribai Sopan Gujar and Others (1999(3) SCC 722)]. The phrase substantial question of law , as occurring in the amended Section 100 of the CPC is not defined in the Code. The word substantial, as qualifying question of law , means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See :Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179]. The principles relating to Section 100 CPC, relevant for this case, may be summerised thus:- (i) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then concluded one way or the other, the position would have been different. When the approach was fundamentally wrong the High Court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the Partition deed . The relevant (translation) portion reads as follows: Aravumuda Chettiar commonly enjoy the well situate on the portion allotted to Purushottama Chettiar, likewise Purushothama Chettiar commonly enjoy the lane situate on the portion allotted to Aravumuda Chettiar. Well is the exclusive property of Purushothama Chettiar and Lane is the exclusive property of Aravumuda Chettiar. Though an attempt was made by learned counsel for the appellant to contend that the quoted portion was only the preamble and not the intention of the parties, the same is clearly untenable. Earlier to the quoted portion it has been noted as follows: As per the above arrangement we decided to enter into the Partition deed and hence we are writing this Partition deed. We should take possession of our respective shares and enjoy the same uninterruptedly for ever. Therefore, there is no manner of doubt that the intention was cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case. Above being the position, the High Court was right in holding that the parties clearly provided for a right of access to the backyard of the defendant's house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors and it is a matter of contractual arrangement between them. In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way. The High Court's re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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