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CASE NO.: Appeal (civil)  4715 of 2000

PETITIONER: Hero Vinoth (minor)

RESPONDENT: Seshammal

DATE OF JUDGMENT: 08/05/2006

BENCH: ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

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.418/5, South  Pidari Street, Seerkazi measuring 19’6" + 22’6" x 160’/2 was  allotted to Purushothaman Chettiar and another portion to the  east thereof measuring 22’6" x 160’ was allotted to the share  Aravamutha Chettiar.   On the death of Aravamutha Chettiar,  his portion of R.S. No.418/5 was purchased by plaintiff from  his legal heir.  Defendant is the widow of Purushothaman  Chettiar and her property is situated on the western side of  plaintiff’s property, which was originally allotted to  Aravamutha Chettiar.

       According to plaintiff, he is entitled to enclose entire  property and defendant has no right of access to the backyard  of her premises, through the passage (lane) situated in the  eastern extremity of plaintiff’s property and the backyard of  plaintiff’s property. Defendant was causing obstruction in the  construction of compound wall by him on the ’GH’ line and the  same was to be prevented by a decree of permanent  prohibitory injunction. According to plaintiff, the defendant  would reach her backyard through her main house situated in  the front side of the property and, therefore, she was not  entitled to claim any right of way through his property.  

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       Defendant did not dispute the ownership of plaintiff over  the property which was originally allotted to Aravamutha  Chettiar and subsequently purchased by plaintiff.    Her stand  was that she has a right of way in terms of the partition deed  and if construction is put on the entire ’GH’ line, her right of  way will be obstructed. She contended that plaintiff if at all  entitled to construct any compound wall, should not cause  any obstruction to her right to way granted under the Partition  deed .

       Trial Court took oral and documentary evidence and  came to the conclusion that plaintiff is entitled to succeed.   Trial court was of the view that the right of way provided to  Purushothaman Chettiar (defendant’s husband) under the  partition deed was an easement of necessity and when  appellant has got other access situated on the northern side  the necessity has ceased to exist under Section 41 of the  Indian Easement Act, 1882 (in short the ’Act’) and  consequently, plaintiff is entitled to put up construction as  prayed for.

       Against the said decision of trial court, defendant- respondent preferred appeal as A.S. 98 of 1996 on the file of  Additional Sub Judge, Mayiladuthurai, 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 easementary  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 questions which need  consideration were the questions a & d.  The High Court found  that the approach of the Trial court and the first appellate  court were clearly erroneous as they failed to distinguish  between the easement of necessity and an easement acquired  by grant.  Considering the relevant clause in the Partition deed   it was held that the right of way given was one of grant and  not an easement of necessity.  Accordingly the Second Appeal  was allowed and the plaintiff’s suit was dismissed.

       In support of the appeal learned counsel for the appellant  submitted that the parameters of Section 100, CPC were not  kept in view by the High Court. It was also contended that as   

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there was no specific pleading regarding the easement by  grant in the written statement, the High Court could not have  decided the matter on that basis.                   Learned counsel for the respondent on the other hand  submitted that the reading of the relevant clause leaves no  manner of doubt that the right flowing from the relevant  portion of the partition deed  was one of grant and not an  easement of necessity.                  We shall first deal with the question relating to  jurisdiction of the High Court to interfere with the concurrent  findings of fact. Reference was made by learned counsel for the  appellant to Chandra Bhan v. Pamma Bai and Anr. (2002 (9)  SCC 565) Sakhahari Parwatrao Karahale and Anr. v.  Bhimashankar Parwatrao Karahale (2002 (9) SCC 608). So far  as the first decision is concerned, in view of the factual  findings recorded by the lower Court and the first Appellate  Court it was held that interference with the concurrent  findings of fact are not justified. The question related to  possession and two Courts primarily considering factual  position had decided the question of possession. In that  background, this Court observed that jurisdiction under  section 100 CPC should not have been exercised. So far as the  second decision is concerned, the position was almost similar  and it was held that findings contrary to concurrent findings  of lower Courts and having no basis either in pleadings, issues  framed or in questions actually adjudicated upon by any of the  lower Courts cannot be sustained. That decision also does not  help the appellant in any manner as the factual scenario is  totally different in the present case.  

       Though as rightly contended by learned counsel for the  appellant the scope for 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 parties.  (See: Krishna Mohan Kul alias Nani Charan Kul  and Another v. Pratima Maity and others [(2004) 9 SCC 468]).

       It is now well settled that an inference of fact from a  document is a question of fact. But the legal effect of the terms  or a term of a document is a question of law. Construction of a  document involving the application of a principle of law, is a  question of law. Therefore, when there is a misconstruction of  a document or wrong application of a principle of law while

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interpreting a document, it is open to interference under  Section 100 CPC. If a document creating an easement by grant  is construed as an ’easement of necessity’ thereby materially  affecting the decision in the case, certainly it gives rise to a  substantial question of law.  

After the amendment a second appeal can be filed only if  a substantial question of law is involved in the case.  The  memorandum of appeal must precisely state the substantial  question of law involved and the High Court is obliged to  satisfy itself regarding the existence of such a question.  If  satisfied, the High Court has to formulate the substantial  question of law involved in the case.  The appeal is required to  be heard on the question so formulated.  However, the  respondent at the time of hearing of the appeal has a right to  argue that the case in the court did not involve any  substantial question of law.  The proviso to the section  acknowledges the powers of the High Court to hear the appeal  on a substantial point of law, though not formulated by it with  the object of ensuring that no injustice is done to the litigant  where such a question was not formulated at the time of  admission either by mistake or by inadvertence.

       It has been noted time and again that without insisting  for the statement of such a substantial question of law in the  memorandum of appeal and formulating the same at the time  of admission, the High Courts have been issuing notices and  generally deciding the second appeals without adhering to the  procedure prescribed under Section 100 of the CPC.  It has  further been found in a number of cases that no efforts are  made to distinguish between a question of law and a  substantial question of law.  In exercise of the powers under  this section in several cases, the findings of fact of the first  appellate court are found to have been disturbed.  It has to be  kept in mind that the right 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 for discussion of  alternative views.  If the question is settled by the  highest court or the general principles to be  applied in determining the question are well  settled and there is a mere question of applying  those principles or that the plea raised is  palpably absurd the question would not be a  substantial question of law."

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       It is not within the domain of the High Court to  investigate the grounds on which the findings were arrived at,  by the last court of fact, being the first appellate court.  It is  true that the lower appellate court should   not ordinarily  reject witnesses accepted by the trial court in respect of  credibility but even where it has rejected the witnesses  accepted by the trial court, the same is no ground for  interference in second appeal when it is found that the  appellate court has given satisfactory reasons for doing so.  In  a case where from a given set of circumstances two inferences  of fact are possible, one drawn by the lower appellate court will  not be interfered by the High Court in second appeal.   Adopting any other approach is not permissible.  The High  Court will, however, interfere where it is found that the  conclusions drawn by the lower appellate court were  erroneous being contrary to the mandatory provisions of law  applicable or its settled position on the basis of  pronouncements made by the Apex Court, or was based upon  inadmissible evidence or arrived at by ignoring material  evidence.                  The question of law raised will not be considered as a  substantial question of law, if it stands already decided by a  larger Bench of the High Court concerned or by the Privy  Council or by the Federal Court or by the Supreme Court.  Where the facts required for a point of law have not been  pleaded, a litigant should not be allowed to raise that question  as a substantial question of law in second appeal.  There mere  appreciation of facts, the documentary evidence or the  meaning of entries and the contents of the documents cannot  be held to be raising a substantial question of law.  But where  it is found that the first appellate court has assumed  jurisdiction which did not vest in it, the same can be  adjudicated in the second appeal, treating it as a substantial  question of law.  Where the fact appellate court is shown to  have exercised its discretion in a judicial manner, it cannot be  termed to be an error either of law or of procedure requiring  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 \026 of having substance, essential, real, of sound worth,  important or considerable.  It is to be understood as  something in contradistinction with \026 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) , the phrase  ’substantial question of law’ as it was employed in the last  clause of the then existing Section 100 CPC (since omitted by  the Amendment Act, 1973) came up for consideration and  their Lordships held that it did not mean a substantial  question of general importance but a substantial question of

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law which was involved in the case. In Sri Chunilal’s case  (supra),  the Constitution Bench expressed agreement with the  following view taken by a full Bench of the Madras High Court  in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad.  969):

"When a question of law is fairly arguable, where  there is room for difference of opinion on it or  where the Court thought it necessary to deal with  that question at some length and discuss  alternative views, then the question would be a  substantial question of law.  On the other hand if  the question was practically covered by the  decision of the highest court or if the general  principles to be applied in determining the  question are well settled and the only question  was of applying those principles to be particular  facts of the case it would not be a substantial  question of law."

This Court laid down the following test as proper test, for  determining whether a question of law raised in the case is  substantial"

       "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 for discussion of  alternative views.  If the question is settled by the  highest court or the general principles to be  applied in determining the question are well  settled and there is a mere question of applying  those principles or that the plea raised is  palpably absurd the question would not be a  substantial question of law."

       In Dy. Commnr. Hardoi v. Rama Krishna Narain (AIR  1953 SC 521) also it was held that a question of law of  importance to the parties was a substantial question of law  entitling the appellant to a certificate under (the then) Section  100 of the CPC.

         To be "substantial" a question of law must be debatable,  not previously settled by law of the 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

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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 inference of fact from the recitals or contents of  a document is a question of fact. But the legal effect  of the terms of a document is a question of law.  Construction of a document involving the  application of any principle of law, is also a question  of law. Therefore, when there is misconstruction of a  document or wrong application of a principle of law  in construing a document, it gives rise to a question  of law.  (ii)    The High Court should be satisfied that the case  involves a substantial question of law, and not a  mere question of law. A question of law having a  material bearing on  the decision of the case (that is,  a question, answer to which affects the rights of  parties to the suit) will be a substantial question of  law, if it is not covered by any specific provisions of  law or settled legal principle emerging from binding  precedents, and, involves a debatable legal issue. A  substantial question of law will also arise in a  contrary situation, where the legal position is clear,  either on account of express provisions of law or  binding precedents, but the court below has decided  the matter, either ignoring or acting contrary to  such legal principle. In the second type of cases, the  substantial question of law arises not because the  law is still debatable, but because the decision  rendered on a material question, violates the settled  position of law.  (iii)   The general rule is that High Court will not interfere  with concurrent findings of the Courts below. But it  is not an absolute rule. Some of the well recognized  exceptions are where (i) the courts below have  ignored  material evidence or acted on no evidence;  (ii) the courts have drawn wrong inferences from  proved facts by applying the law erroneously; or (iii)  the courts have wrongly cast the burden of proof.  When we refer to ’decision based on no evidence’, it  not only refers to cases where there is a total dearth  of evidence, but also refers to any case, where the  evidence, taken as a whole, is not reasonably  capable of supporting the finding.       

       In the case at hand the High Court found that the  approach of the trial court and the first appellate court was  erroneous inasmuch as they proceeded on the basis as if it is  a case of easement of necessity.  Had the trial court and the  first appellate court considered the evidence in the light of the  respective stands of the parties and 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

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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 clear that it was a grant and not an easement of necessity  which could be extinguished.                          The question whether an easement is one acquired by  grant (as contrasted from an easement of necessity) does not  depend upon absolute necessity of it.  It is the nature of the  acquisition that is relevant. Many easements acquired by  grant may be absolutely necessary for the enjoyment of the  dominant tenement in the sense that it cannot be enjoyed at  all without it.  That may be the reason for the grant also.  But  easement of grant is a matter of contract between the parties.  In the matter of grant the parties are governed by the terms of  the grant and not anything else.  Easement of necessity and  quasi easement are dealt with in Section 13 of the Act.  The  grant may be express or even by necessary implication.  In  either case it will not amount to an easement of necessity  under Section 13 of the Act even though it may also be an  absolute necessity for the person in whose favour the grant is  made.    Limit of the easement acquired by grant is controlled  only by the terms of the contract.  If the terms of the grant  restrict its user subject to any condition the parties will be  governed by those conditions.  Any how the scope of the grant  could be determined by the terms of the grant between the  parties alone.  When there is nothing in the term of the grant  in this case that it was to continue only until such time as the  necessity was absolute. In fact even at the time it was granted,  it was not one of necessity.   If  it is a permanent arrangement  uncontrolled by any condition, that permanency in user must  be recognized and the servient tenement will be recognized  and the servient tenement will be permanently burdened with  that disability.  Such a right does not arise under the legal  implication of Section 13 nor is it extinguished by the  statutory provision under Section 41 of the Act which is  applicable only to easement of necessity arising under Section  13.

       An easement by grant does not get extinguished under  Section 41 of the Act which relates to an easement of  necessity. An easement of necessity is one which is not merely  necessary for the reasonable enjoyment of the dominant  tenement, but one where dominant tenement cannot be used  at all without the easement. The burden of the servient owner  in such a case is not on the basis of any concession or grant  made by him for consideration 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

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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 reasoning and conclusions do not  suffer from any infirmity to warrant interference.

       The appeal is accordingly dismissed.  No costs.