Gujarat High Court
Patel Somabhai Shankarbhai vs Revabhai Becharbhai Solanki ... on 29 December, 2016
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SA/211/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 211 of 2016
With
CIVIL APPLICATION NO. 8177 of 2016
In
SECOND APPEAL NO. 211 of 2016
With
CIVIL APPLICATION NO. 12243 of 2016
In
SECOND APPEAL NO. 211 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the NO
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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PATEL SOMABHAI SHANKARBHAI....Appellant
Versus
REVABHAI BECHARBHAI SOLANKI VANKARDECD. & 1....Respondents
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Appearance:
MR. YOGENDRA THAKORE for the Appellant(s) No. 1
MR TEJAS P SATTA for the Respondent(s) No.1.11.6,2.22.6
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 29/12/2016
ORAL JUDGMENT
1. The present Second Appeal is preferred by the appellantoriginal defendant under Section 100 of the Code of Civil Procedure challenging the Page 1 of 11 HC-NIC Page 1 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT impugned judgment and order in Regular Civil Appeal No.59/2012 dated 30.07.2016 confirming the judgment and order in Regular Civil Suit No.16/1998 by the Principal Civil Judge, Vadnagar dated 03.03.2012 allowing the suit of the plaintiff and directing the appellantoriginal defendant to remove obstacles on the way as stated in the impugned judgment and order posing substantial questions of law as follows : "(A) Whether Courts below were right in decreeing the suit by considering the right of way by prescription in absence of any pleading or evidence?
(B) Whether the appellate court had erred in violating order 41 rule 31 of the code of civil procedure while exercising appellate powers?
(C) Whether the courts below had erred in not taking into consideration the documentary evidence as well as oral evidence property? (D) Whether the courts below were right in discarding the evidence of court commissioner vide exhibit - 141 which draws presumption as to maps.
(E) Whether the Learned Trial Court was right in not determining the issue No.3?
(F) Whether the Learned Trial Court was right in allowing the suit on the ground that the plaintiff had shown their case by preponderance of probability and to the satisfaction of the court in absence of any Page 2 of 11 HC-NIC Page 2 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT evidence?"
2. Heard learned advocate, Shri Y.M. Thakore for the appellant and learned advocate, Shri Tejas Satta for the respondents.
3. Learned advocate, Shri Thakore referred to the papers at lengths and tried to submit that the Court below has failed to appreciate that the issue was with regard to the right of prescription and no such issue has been framed and still it has proceeded to decide the right of way by necessity as well as by prescription. He pointedly referred to the observations made in the judgment of the trial court as well as the first appellate court. Learned advocate, Shri, Thakore therefore submitted that as the Courts below have failed to frame relevant issues as required under Order 41 of the Code of Civil Procedure and if there is no issue or evidence, it would amount to perversity. He, therefore, tried to submit that the judgment of the Court below is perverse and the present Second Appeal may be entertained as it gives right to challenge such order even on the aspect of facts and appreciation of evidence. In support of his submissions, he referred to and relied upon Page 3 of 11 HC-NIC Page 3 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT the judgment of the Hon'ble Apex Court reported in (2005) 1 SCC 471. He submitted that there has to be an evidence with regard to the right of way for a period of 20 years and as the plaintiff has failed to establish, the findings are erroneous. He submitted that there is no scope for any presumption and the Court below has committed error. Similarly, he referred to and relied upon the judgment of the High Court (Coram : N.V. Anjaria, J.) in case of Rana Bharatsinh Jasubha Vs. Heirs of Valand Laljibhai Arjanbhai & Ors., reported in 2014 (2) GLR 1688 and submitted that the evidence which is contrary to the pleading, cannot be relied upon. He emphasized that while deciding the issue with regard to the easement by prescription, the Court ought to have considered the use of the land for passage for a period of 20 years, which has not been done and has discussed without any issue or specific issue being raised. Similarly, he has referred to and relied upon the judgment of the High Court (Coram : K.A. Puj, J.) in case of Ganesh Kesha Hanath Vs. Kantaben Wd/o Lakhman Hanath, reported in 2007 (3) GLR 170 and submitted that the present appeal may be admitted.
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Learned advocate, Shri Thakore has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Kulwant Kaur Vs. Gurdial Singh Mann (dead) by L.Rs. & Ors., reported in AIR 2001 SC 1273 and submitted that if the finding of fact is perverse then, the High Court can interfere with the finding of facts.
4. Learned advocate, Shri Satta for the respondent referred to the background of the facts as well as the judgment of the Courts below and submitted that the concurrent findings of facts may not be disturbed in exercise of discretion under Section 100 of the Code of Civil Procedure in Second Appeal. He pointedly referred to the judgment of the trial court in Paragraph No.9.7 and submitted that there were 3 panchnamas carried out by the Court Commissioner and after appreciating the evidence and the contentions of the defendants, the findings and conclusion are arrived at, which cannot be termed as perverse. Learned advocate, Shri Satta submitted that there is specific finding with regard to the fact that there is no alternate way and the plea of the defendant about alternate way is not believed. It is in this Page 5 of 11 HC-NIC Page 5 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT background, the discussion has been made that the suit of the plaintiff is based on right of way by way of prescription and not by way of necessity. He pointedly referred to the observation, "So far as to the alternative way is concerned, it can be said that the suit of the plaintiffs is based on the right of way by way of prescription and not by necessity. And the defence of alternative way is good defence in an action based on easement by necessity. Perusing carefully plaint, it appears that the case of the plaintiffs is not based on easement by necessity so the defence of alternative way is taken by the defendant becomes irrelevant."
5. It is in this circumstances, it has been further observed that in view of the discussion on the issue no.3, the observations have been made. Learned advocate, Shri Satta, therefore, submitted that it is an appreciation of evidence by both the Courts below. At the cost of repetition, learned advocate, Shri Satta submitted that there were more than one report made by the Court Commissioner, which has been examined including the map. Learned advocate, Shri Satta submitted that similarly, the discussion in Paragraph No.9.9 of the judgment of the trial court refers to the aspect of use and enjoyment of the land without Page 6 of 11 HC-NIC Page 6 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT interruption since last 20 years and same has also been considered. He, therefore, submitted that the present appeal may not be entertained in view of the scope of Second Appeal under Section 100 of the Code of Civil Procedure and the impugned judgment and order cannot be said to perverse, which would call for any interference in the Second Appeal.
6. In rejoinder, learned advocate, Shri Thakore again referred to the evidence and background of the facts at length and also the judgment of both the Courts below and tried to submit that as the issue is not framed, it would be contrary to the statutory provision of Order 41 of the Code of Civil Procedure. He submitted that the appellate court has also failed to consider and as no issue regarding the right of way by prescription is made, the appellate court could have examined the same but has only endorsed the findings given by the trial court and, therefore, the present appeal is maintainable.
7. In view of these rival submissions, it is required to be considered whether the present appeal deserves consideration.
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8. The background of the facts, which have been referred to at length by both sides would clearly suggest that the findings given by both the Courts below cannot be said to be perverse merely because learned advocate for the appellant has tried to play with the words referring to the right of way and the right of way by prescription. The ultimate analysis, which is required to be considered, is whether the Court has discussed all the issues or the controversy between the parties as it has been discussed in the judgment of the trial court referring to the map prepared by the Court Commissioner at Exh.142, report by the Court Commissioner at Exh.75 and report of the Court Commissioner at Exh.141 itself would suggest that same has been considered. Moreover, the deposition of the witness of the plaintiff has clearly stated about the use of the land, which was enjoyed. Therefore, clear finding is given that it is the appellantoriginal defendant who is trying to obstruct the use and enjoyment of the land by way of prescription.
9. The submissions which have been made at length referring to the scope of Order 41 of the Code of Page 8 of 11 HC-NIC Page 8 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT Civil Procedure and the discussion as to the specific framing of an issue would not be justified. The Hon'ble Apex Court in a judgment in case of Narayanan Rajendran & Anr. V/s Lekshmy Sarojini & Ors, reported in (2009) 5 SCC 264 has expressed a word of caution referring to the scope of exercise of discretion under Section 100 of the Code of Civil Procedure after the Amendment of 1976. It has been observed, "The scope of interference by the High Court in second appeal under section 100 CPC after 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law."
10. Moreover, the observations have been made in this judgment with regard to the approach in such matters and specific observations have been made referring to the scope of Section 100 of the Civil Procedure Code after the 1976 Amendment. Thus in the ultimate analysis, it has been clearly observed, "The court stated that the High Court can exercise its jurisdiction under Section 100 C.P.C. only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal Page 9 of 11 HC-NIC Page 9 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT and the second appeal has to be heard and decided only on the basis of the such duly framed substantial questions of law."
11. The Court has also referred to the approach taken in earlier judgment of the Hon'ble Apex Court in case of Kshitish Chandra Purkait Vs. Santosh Kumar Purkait, reported in (1997) 5 SCC 438. Again it has also been reiterated as to what could be said to be a question of law. It has been observed, "According to the court the word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with 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 of Article 133(1) (a) of the Constitution."
12. Therefore what could be said to be a question of law rather substantial question of law has to be specified. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Nagarpalika Thakurdwara Vs. Khalil Ahmed & Ors., reported in AIR 2016 SC 4477, wherein it has been observed as to what could be said to be Page 10 of 11 HC-NIC Page 10 of 11 Created On Fri Dec 30 00:13:30 IST 2016 C/SA/211/2016 JUDGMENT substantial question of law.
13. In the facts and circumstances, as discussed hereinabove, there is hardly any question of law which can be said to have been involved. Therefore, the present appeal cannot be entertained and the impugned judgment and order by both the Courts below cannot be said to be perverse, which would call for any interference.
14. The present Appeal, therefore, deserves to be dismissed and accordingly stands dismissed.
15. In view of the dismissal of main Second Appeal, Civil Application No.8177/2016 for stay does not survive and stands disposed of accordingly. Interim relief stands vacated. Notice is discharged.
16. In view of the dismissal of main Second Appeal, Civil Application No.12243/2016 filed for vacating the stay granted in Civil Application No.8177/2016 also does not survive and stands disposed of accordingly.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 11 of 11 HC-NIC Page 11 of 11 Created On Fri Dec 30 00:13:30 IST 2016