http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

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.