Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
A.M. Mir, J.
Manzoor Hussain & Ors. - Appellant
Versus
Om Prakash & Ors. - Respondent
CSA No. 26/1995
Decided On : 20 February, 2001
Easementary Right - Permanent Injunction - Code of Civil Procedure, Section 100 - The court discussed the substantial question of law involved in a second appeal and the scope of interference with findings of fact under Section 100 CPC. The judgment emphasized the importance of considering vital evidence and the admissibility of evidence in determining substantial questions of law.
Fact of the Case:
The appellant filed a suit for permanent injunction to restrain the respondent from interfering with a common lane and obstructing the flow of water. The trial court decreed the suit in favor of the appellant, but the first appellate court reversed the judgment and decree, resulting in the dismissal of the suit.
Finding of the Court:
The court found that the first appellate court had ignored important documents and oral evidence, misread evidence, and rendered a perverse judgment, resulting in a miscarriage of justice.
Issues: The issues included the existence of a public lane, the appellant's easementary right, and the obstruction of the lane by the respondent.
Ratio Decidendi: The court emphasized the importance of considering vital evidence and the admissibility of evidence in determining substantial questions of law. It also highlighted the scope of interference with findings of fact under Section 100 CPC.
Final Decision: The judgment and decree of the first appellate court were set aside, and the judgment and decree of the trial court were upheld with costs.
2. The facts in brief are that the predecessor-in-interest of the appellant filed a suit for permanent injunction restraining the predecessor-in-interest of respondent (Krishan Dass) from interfering into 8 feet wide common lane existing between the houses of the parties and from raising any construction on this lane, so as to deprive them of their right to light, air and
passage of water.
Similarly a relief was prayed against the defendant restraining him from dumping his Malba in the lane. Suit was filed on 16-11 -1979. In the written statement the defendant denied existence of any lane. The factum of existence of any pipeline through that lane was also denied. The trial court on the pleadings of the parties framed following issues:-
1. Whether in-between the houses of the plaintiff and the defendant a public lane 8 wide exists ?
2. On proof of issue No. 1 whether the plaintiff has any easementary right of light, air and water outlet over the lane ?
3. On proof of issue No. 1 & 2 whether the defendant has obstructed the public lane by dumping debris thereon ?
3. The trial court on the strength of evidence on record, decided issue No. 1 & 2 in favour of the plaintiff and decreed the suit. As a result a mandatory injunction in favour of the plaintiff and against the defendant was passed commanding the defendant to remove all the debris accumulated alongside the house in the lane existing towards east of the house of the plaintiff and also allowed the plaintiff to enjoy and use the said lane Gali; as a thoroughfare and not to interfere his right to light and air through that lane. A perpetual injunction was also granted restraining the defendant from obstructing the flow of water etc. etc.
4. Aggrieved of this judgment and decree the defendant-respondent took an appeal
before the first appellate court which, vide impugned decree and judgment, allowed the appeal and reversed the trial courts judgment and decree, resulting into dismissal of the suit with
costs.
5. Mr. P.S. Duttas vehement argument was that this being a second appeal, the. court cannot go to re-appreciate the evidence and set aside the findings on such re-appreciation. According to him no question of law was involved and as such the appeal was not maintainable. Reliance was placed upon the following authorities:-
(i) Doyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor (AIR 1999 SC 864).
(ii) Kondiba Dagadu Kadam Vs. Savitribal Sppan Gujar and others (AIR 1999 SC 2213).
(iii) Ms. Labanya Neogi (through LRS) Vs. M/s W.B. Engineering Co. (AIR 1999 SC 3331).
(iv) Roop Singh Vs. Ram Singh, (AIR 2000 SC1485).
6. I have considered these authorities. I have seen that this argument is generally taken in second appeals, therefore, before dealing with the case, I would like to refer to section 100 of the Code of Civil Procedure, which relates to second appeals.
7. Section 100 ordains that a second appeal shall lie, only where the High Court is satisfied that the case involves a substantial question of law. Section 101 lays down that no second appeal shall lie except on the ground mentioned in Section 100. However, to this general rule Section 103 makes out an exception of empowering the High Court to determine issues of fact which have not been determined, and about which sufficient evidence is available on record, or which have wrongly been determined by the lower court or Courts.
8. Now going to the above referred authorities we find that in Doyanoba Bhaurao Shemades case reported in AIR 1999 SC 864, their Lordships of Supreme Court found that the High Court, while deciding a second appeal, had not formulated the substantial question of law and decided the appeal without referring to any such substantial question or law. This i
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
