Govindram Gulabdas Ramavat vs Kalpesh Kirtikant Shah

A.I.S. Cheema, J.—Matter is taken up with consent of learned counsel for appellant and learned counsel for respondent No.1, for hearing finally at admission stage. This Second Appeal is filed by original plaintiff No.1, who along with 8 others, filed Special Civil Suit No.78/1994 for declaration of easementary rights of way and for injunction, brought against neighbours, defendant Nos.1 and 2. The suit was partly decreed and the Civil Appeal No.181/2003 came to be dismissed. Against the rejection of the First Appeal, this Second Appeal is tendered.

Counsel for appellant - plaintiff No.1 (hereinafter referred to as the plaintiff) has been heard. Counsel for respondent No.1 appeared on caveat and he has also been heard.

In nutshell, the case brought by the plaintiff is that, at Jalgaon, City Survey No.1725/1A was owned by one Ramchandra Shivnarayan Jaju. The partition took place on 8.5.1959 and the property was divided into three parts, (i) C.T.S. No.1725/1A/1, (ii) C.T.S. No.1725/1A/2 and (iii) C.T.S. No.1725/1A/3. The first part went to son Sitaram Ramchandra Jaju (plaintiff No.6), second part went to son Gopal Ramchandra Jaju (defendant No.2) and third part went to grandson of Ramchandra namely Shantaram Shaligram Jaju. Defendant No.1 is purchaser from said Shantaram Shaligram Jaju. It is claimed that, plaintiff No.1 and other plaintiffs No.2 and 7 were tenants in C.T.S. No.1725/1A/1 which had gone to plaintiff No.6 Sitaram Ramchandra Jaju and that plaintiff purchased his portion subsequently. It is the case of plaintiff that, defendant No.1 purchased property from C.T.S. No. 1725/1A/3 from Shantaram in April 1989. The old structure was demolished and defendant No.1 started reconstruction. Plaint shows that, C.T.S. No.1725/1A/3 is to the east of C.T.S. No.1725/1A/1 and C.T.S. No.1725/1A/2. The case brought by plaintiff is that, in between C.T.S. No.1725/1A/2 and C.T.S. No.1725/1A/3 there is portion of land which is lane, going from north to south. According to the plaintiff, on portion of 10 ft. x 60 ft. running north-south from the western side of C.T.S. No.1725/1A/3 and portion of 5 ft. x 60 ft. running north south from the eastern side of C.T.S. No.1725/1A/2 comprises of the land constructing the lane. Thus, it is clear that, the land claimed is of 15 ft. x 60 ft. in between the two portions regarding which the plaintiff claims, there are easementary rights in favour of the plaintiff, purchased portion in C.T.S. No.1725/1A/1.

It appears that, defendant No.1 contested the suit. Defendant No.2, it is stated, did not file written statement. Defendant No.1 denied that any portion from the land of C.T.S. No.1725/1A/3 purchased by him was left out as a portion for using way to the west of his land. It was contended in the written statement that, from the portion of C.T.S. No. 1725/1A/2, portion of 5 ft. x 60 ft. north-south had been left as way.

If the judgment of the trial Court is perused, it discussed how the property of Ramchanndra Jaju came to be divided and different shares went to his two sons and grandson, regarding which fact there was no dispute. Discussing the evidence which had been brought by the parties by way of oral evidence and documents like their sale deeds, the trial Court found that the sale deed relied on by the plaintiff does not show a right of way given to him. Trial Court also found from the cross-examination of plaintiff (P.W.1) that there was no document in respect of suit way with any of the plaintiffs. The other plaintiffs i.e. plaintiff No.2 Ratanlal was also not able to show any documentary evidence with regard to any use of three parts of the C.T.S. No.1725/1A. Trial Court also discussed the evidence where another witness P.W.3 claimed that the specifications of 15 ft. x 60 ft. way was on the basis of approximate. The trial Court discussed the evidence of the City Surveyor as well as the Commissioner, who had been appointed, and after discussing the evidence, found that the sale deeds of the plaintiffs themselves, which were Exhibits 80, 100 and 108, did not specifically point out or indicate about inclusion of area out of property of defendant No.1 in the alleged way. Analysing the evidence, trial Court found that the witnesses including plaintiff were not able to point out availability of way through the property of defendant No.1. Trial Court referred to the written statement of defendant No.1 that joint use of way was provided from the portion of C.T.S. No.1725/1A/2. After discussing the evidence, trial Court held that there was no satisfactory evidence to establish way through the property of defendant No.1. Trial Court held that the plaintiffs were unable to establish exclusive right of way of necessity or by prescription as claimed by them. The trial Court found that the defendant No. 1 had complied with the necessary formalities so as to start the construction and that during the pendency of the suit, the construction was also complete. Considering the map of the Commissioner and other evidence and the written statement of the defendant No.1, the Court found that way of 5 ft. x 60 ft. was available from the portion of land of C.T.S. No.1725/1A/2 from which the easementary right existed and to that extent, partly decreed the suit.

Against the judgment of the trial Court, original plaintiff Nos.3 and 4 did not prefer appeal. Original plaintiff Nos.1, 2, 5, 7, legal representatives of plaintiff No.8 and plaintiff No.9 filed the appeal. District Judge heard the parties and considering the provisions of the Easements Act, went on to examine the oral and documentary evidence. District Judge considered that, to the north of C.T.S. No.1725/1A/1, there was Municipal road and thus, there was no substance in the claim of plaintiffs that they have a claim of easement of necessity. District Judge found that sale deed relied on by the plaintiffs do not at all mention of grant of any right of way from 10 ft. land of defendant No.1. District Judge found that the evidence of the witnesses and documents do not show that plaintiffs had any element of right of easement on the land of defendant No.1. The claim of easement of necessity was discarded stating that there is already 5 ft. wide approach lane as mentioned by the trial Court. Thus, the District Judge dismissed the appeal.

Against the judgment of the District Court, only plaintiff No.1 has come in Second Appeal. Learned counsel referred to the rival disputes and has taken me through the judgments of both the Courts. The learned counsel stated that, the plaintiff Nos.1, 2 and 7 were earlier tenants in portion of C.T.S. No.1725/1A/1 and later on purchased their portions from plaintiff No.6 Sitaram. He accepted that the sale deed of plaintiff mentions to his east a lane, but there was no measurement of the said lane. According to him, the claim of plaintiffs could not have been discarded by referring to the portion of 5 ft. x 60 ft. from C.T.S. No.1725/1A/2. According to him, District Judge did not properly discussed evidence of all the witnesses and the easementary right of plaintiff was established because earlier he was using the space as a tenant and subsequently as purchaser. The right was over the land of defendant No.1 to the extent of 10 ft. x 60 ft. According to him, the defendant, after purchase, removed the old structure and started new construction. The plaintiff claimed that defendant started construction in portion of land which was earlier open and thus, the suit had to be brought. Learned counsel submitted that, substantial questions of law are involved in the present Second Appeal as detailed by him in para 2 of appeal memo. It is his contention that District Judge wrongly referred to the Municipal road on the north to claim that the plaintiff could use way from that side when it was not the case of defendant No.1 that access from such portion can be made.

Learned counsel for respondent No.1- defendant claimed that there is no question of law involved in the matter. Learned counsel claimed that, the suit was brought merely claiming that there is easementary right without specifying whether it was easement of necessity or easement of prescription and that there was no reliable evidence to show that any easementary right of way had been used from property of defendant No.1. According to the learned counsel, there is Municipal road to the north of the property of plaintiffs and there is no reason to claim easement from land of defendant No.1. It has been submitted by him that there is no evidence to show that easement was acquired by prescription as there is no material to show that there was open, apparent and continuous use as of right. According to him, only because there may be some portion which is open, if somebody uses the same, by that itself easementary right does not get established. Learned counsel submitted that, in the judgment and orders of both the Courts no perversity is pointed out and so, the Second Appeal is not maintainable.

I have gone through the judgments of both the Courts, and considered the record.

In the matter of Gurdev Kaur and Others Vs. Kaki and Others, it was observed in para 69 as under :

"69. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction to interfering u/s 100, C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble." . . . . . . "

It is quite well settled that the High Court cannot just interfere with findings of fact arrived at by the trial Court and confirmed by District Court. Sub-section (3) of Section 100 of the CPC requires that the memorandum of appeal shall "precisely state" the substantial question of law involved in the appeal. Learned counsel for the appellant had referred to paras A to G of Para 2 of the memorandum of appeal to claim that these are the substantial questions of law. Going through these paragraphs, it is clear that, as required by Section 100 of CPC, the substantial question of law has not been precisely stated. What has been stated, if accepted, would require reappreciation of the whole case. In vague manner it is mentioned that both the courts below recorded perverse findings and observations. Learned counsel for the appellant claimed that the District Judge could not have observed that the plaintiffs can use the Municipal road which is to the north of their property when no such defence was taken by the defendant No.1. I find that, no error can be pointed out on the basis of such submission as the report of the Commissioner was before the Court and when plaintiff claims easement of necessity, basically it is for the plaintiff to show that he has no other access but for the portion on which easement of necessity is claimed. Both the Courts have found, by way of fact that, easement of necessity or prescription has not been proved from the portion of land of defendant No.1. I do not find any perversity in the observations of the trial Court and the first appellate Court and I cannot reappreciate the evidence to disturb concurrent findings of fact.

No substantial question of law is involved in the Second Appeal. The Second Appeal is dismissed at the stage of admission.