Paulose vs Rajan

K.A. Abdul Gafoor, J.—Plaintiff is the appellant. Suit was for declaration of casement right by prescript on over C schedule pathway to reach A schedule property owned by the plaintiff extending about more than 3 acres. He is the owner of the property as per partition deed of the year 1974, Art. A2. He suffered dismissal of the suit at the lower appellate stage. Second Appeal was allowed as per judgment-dated 29.10.97. The defendant took up the matter before the Supreme Court as Civil Appeal No.3679/99. The Supreme Court found that this Court did not strictly keep in view the jurisdiction vested in this Court under S. 100 of the CPC as enunciated by the Supreme Court in Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others, ; in so far as this Court did not formulate a substantial question of law to allow the appeal. Accordingly, the said judgment was set aside and the Second-Appeal was restored to the file of this Court to decide the matter afresh in accordance with law "in the light of the jurisdiction available to the High Court under S.IOO CPC. Notice has been issued in the Second Appeal on the substantial questions of law formulated in the memorandum of appeal. Two questions were so formulated. Those are,

Whether the appellate Judge was right in holding that if the origin of the right is an agreement an easement under S. 15 cannot be acquired?

Whether the judgment of the Appellate Judge is vitiated due to non-consideration of material items of evidence and palpably wrong understanding of the items of evidence?

The first question of law is based on the finding contained in paragraph 9 of the judgment of the lower appellate Court. The lower appellate Court found that.

On the plaintiff''s own showing in this case, he has been in the user of the disputed pathway pursuant to an agreement with the owners of the servant tenement. Such a case of the plaintiff evidently militates against his claim of easement reign by prescription.

In terms of Explanation I to S. 15 of the Indian Easements Act. 1882. enjoyment of a right in the nature of casement pursuant to an agreement with the owner or occupier of the properly over which such right is claimed will not come under the term enjoyment referred to in the main part of the Section. The lower appellate Court as mentioned above found that on the plaintiff''s own showing he has been enjoying the C schedule disputed pathway pursuant to an agreement. The averments in paragraph 4 refer only to widening of the pathway with consent and only for the purpose of widening, the consent is referred to. That docs not mean that that alleged pathway was being used by the plaintiff on agreement of consent. If the right of enjoyment annattos from an agreement necessarily a right of casement by prescription cannot be acquired in terms of the Explanation 1 to S. 15. Here as mentioned above, consent is confined to widening alone. So the Explanation to the Section is not attracted. Therefore, the finding in paragraph 9 of the lower appellate Court judgment with regard to the alleged agreement for the use of pathway is vacated.

But this will not save the plaintiff from averting the decree in this case. The second question of law. urged as above, is totally based on the alleged "non-consideration of material items of evidence and palpably wrong understanding of the items of evidence by the lower appellate Court, which according to the appellant vitiates the judgment impugned. Consideration of this aspect involves re-appreciation of evidence. The jurisdiction vested in this Court under S. 100 of the Code of Civil Process will not stretch to the extent of re-appreciation of evidence. It is contended that when the judgment is totally wrong and essentially erroneous as compared to the evidence on record, this Court can interfere with the findings of the lower appellate Court. "The decision rendered by me in Paramu Vijayasree v. Paramu Jayaprakash (1999 (3) KLT 343) is relied on to substantiate this proposition. It is true that f have held, following the decision of the Privy Council and the Supreme Court, that this Court can re-appreciable the evidence while considering a second appeal where the findings by the Courts below on facts are vitiated by "non-consideration of relevant evidence or by an essentially erroneous approach to the matter." The approach of the lower appellate Court in this case is discernible from the findings contained in paragraph 8 of its judgment. The lower appellate Court found as follows:

It was in the year 1965,6th defendant and his brother partitioned their joint property, which takes in the disputed pathway. Till 1965 the 6th defendant had no occasion to make use of a pathway as plaint C schedule in so far as the properties of defendants 1 to 6 were not partitioned. The case of the plaintiff that he was making use of the pathway through the undivided property of the defendants for ingress and egress to the plaintiff''s residential plot from the Panchayat road is highly improbable, because A schedule property is admittedly extending up to the Panchayat road beyond northern side of the defendants property. As I have already pointed out the residential building of the plaintiffs facing towards north and there are stops from the residential compound to the lower plot of the plaintiff. It is therefore, every clear that before partitioning the properties of the defendants'' in the year 1965 (after/which 6lh defendant had to create a pathway for ingress and egress to the property which he obtained as pre partition) the plaintiff had no occasion or necessity of passing through the defendants'' property. I therefore, find it difficult to place reliance on the oral testimony of PWs. 1 to 3 that plaint C schedule pathway has been in existence for the last more than 20 years.

Thus the Court below, examining the probability of the cases put up by cither side, came to the said conclusion that the plaintiff was not entitled easement by prescription as claimed by him. This is based on the evidence and also rejecting the oral testimony of PWs. 1 to 3. A mere recital in Ext. A2 partition deed between the plaintiff or his brother and his father, without the juncture of the defendants, about (sic) alleged pathway through defendants'' property, cannot improve the case any more; because the defendants are not bound by any agreement entered into by the plaintiff with his brothers, or his father in that partition deed. Whose that is the conclusion based on the probability of the case arrived at by the lower appellate Court, that too based on the evidence, the jurisdiction vested in this Court under S. 100 of the CPC cannot be made use of to unsettle the finding because that finding is not an essentially erroneous finding, which could have been unsettled even re-appreciating the evidence as held by me in Paramu Vijayasree''s Case. On the other hand, the Supreme Court in Taherakhatoon (D) by Lrs. Vs. Salambin Mohammad, .

As long as there is some material for the rejection of the document, the Second Appellate Court ought not to have interfered with the above said finding of fact.

As mentioned above the finding of the lower appellate Court in paragraph 8 of the judgment, as extracted above is rejecting the testimony of PWs 1 to 3 asserting an easement by prescription. That being thus a finding of the lower appellate Court based on some material, the jurisdiction vested in this Court under S. 100 C.P.C. cannot be made use of to unsettle the said finding.

In Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, again examining the scope of S. 100 CPC the Supreme Court held that-

...In a case from a given set of circumstances two inferences arc possible, one drawn by the lower appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless 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 without evidence.

Again, as discernible from the passage extracted from lower appellate Court judgment, it can easily be found that such finding is based on the probability of the case: especially when there was road frontage to A schedule property and the alleged pathway namely C. schedule claimed through defendants'' property comes behind the plaintiff''s residential plot. Therefore, the finding based on the probability as mentioned above cannot be unsettled, going by the aforesaid decision as well.

I have followed the aforesaid decision in Antony v. Joseph (1999 (2) KLT (SN) 64) and held that unless it is found that the conclusion drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law. the judgment impugned cannot be interfered with. The finding of the lower appellate Court as extracted above cannot be said to be erroneous being contrary to the mandatory)'' provisions of law or against any of the pronouncement of the Apex Court. On the other hand, it is based on the probability of the case taking into account the evidence on record.

Therefore, there arise no substantial question of law as formulated as question No.2 in the memorandum of appeal to invite any answer in favour of the appellant. It was contended before me that the Court below ought not IO have carried away by the facts and circumstances that there was road frontage to A schedule property owned by the plaintiff; as the claim put forward in the plaintiff was easement by prescription and not by necessity.

Therefore, availability to die access to road or road frontage is immaterial. That is an undoubted proposition and cannot but be accepted. But the lower appellate Court did not reject the case solely on the ground of availability afraid frontage to A schedule properly. Road frontage to the A schedule properly was referred to by the lower appellate Court only to assess the probability and improbability of the case pleaded by the plaintiff and not as a ground to reject the case of easement by prescription. Therefore, that contention also does not have any relevance.

As the two substantial questions of law formulated in the Second Appeal on which notice has been issued thus stand answered the connotative effect of the answer only contains the judgment, though answer to the first question of law is in favour of the appellant.

Accordingly appeal fails. Dismissed No costs.