2006 Supreme(SC) 464

2006(4) Supreme 131
SUPREME COURT OF INDIA
(From Madras High Court)
Arijit Pasayat & R.V. Raveendran, JJ.
Hero Vinoth (Minor)—Appellant
versus
Seshammal—Respondent
Civil Appeal No. 4715 of 2000
Decided on 8-5-2006
Counsel for the Parties :
For the Appellant : K.K. Mani, K.B. Sandeep, Mayur R. Shah, R.K. Pandey, Advocates.
For the Respondent : V. Prabhakar, Ashok K. Sadhu Khan, Ramjee Prasad, Mrs. Revathy Raghvan, Advocates.

IMPORTANT POINT
If a right of way is provided to a particular sharer in a property, it being an easement by grant, it can not be extinguished merely because such sharer has other alternative way.

Headnote:Civil Procedure Code, 1908—Section 100—Jurisdiction of High Court to interfere with concurrent findings of fact—Re-appreciation of evidence is not permissible—An inference of fact from a document can be a question of fact but legal effect of terms or a term of a document would be a question of law—Construction of a document involving application of a principle of law would be a question of law—Second appeal could be entertained only if a substantial question of law was involved—Phrase “substantial question of law”—To be “substantial” a question of law must be debatable, not previously settled by law of land or a binding precedent—Suit for permanent injunction filed by appellant-plaintiff who was putting up compound wall in his portion of property—Plaintiff had purchased suit property from a co-sharer of defendant after property had been partitioned by co-sharers by a deed of partition—Defendant pleaded that she had a right of way in terms of partition deed and compound wall would obstruct that right—Trial Court decreed suit holding that right of way provided to defendant under partition deed was an easement of necessity and when appellant got other access, necessity ceased to exist u/s 41 of Indian Easement Act, 1882—1st appellate Court upheld the decree—High Court in second appeal held that right of way given was one of grant and not an easement of necessity and dismissed the suit—Appeal—Terms of partition deed showed that it was a grant and not an easement of necessity which could be extinguished—When approach of Courts below was fundamentally wrong, High Court could not be faulted for having gone into the question as to what was intention of parties—High Court’s reasoning and conclusion did not suffer from any infirmity to warrant interference.

       Held : 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 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.(Para 16)

       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).(Para 20)

       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.(Paras 24 and 25)

       (ii) Indian Easement Act, 1882—Section 13—Easement of grant and easement necessity—Distinction—Scope of grant could be determined by terms of the grant between parties alone—An easement by grant does not get extinguished u/s 41 of the Act.

       Held : 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 14 of the Act which is applicable only to easement of necessity arising under Section 13. (Para 28)

       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 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 dominent 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.(Para 29)