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2006 DIGILAW 506 (ORI)

MADASI RAMU v. MADASI KRISHNA RAO

2006-07-12

A.K.PARICHHA

body2006
( 1 ) THIS is an appeal by the unsuccessful plaintiff against the judgment and decree in T. A. No. 11 of 1985 (T. A. No. 34 of 1984-GDC) passed by the learned 1st additional District Judge, Berhampur confirming the judgment and decree of learned additional Munsif-cum-S. D. J. M. , Berhampur passed in T. S. No. 76 of 1979. ( 2 ) THE plaintiff appellant and defendants-respondents, who are brothers effected partition of their dwelling house in a family settlement dated 31-7-1978 wherein the house was divided into four shares, the front half facing the main road fell to the share of plaintiff and defendant No. 1 and rear portion fell to the share of defendant nos. 2 and 3. There is a courtyard in between the front and rear block. According to the appellant, this courtyard was kept joint for common use of the brothers and accordingly, the families residing in the front block used to go to the latrine which situates on the north-west corner of the premises through that courtyard. He alleged that the defendants residing in the rear block suddenly obstructed the tenants of the plaintiffs and did not allow them to go to the latrine through the courtyard, for which he filed the suit claiming permanent injunction against the defendants restraining them from interfering with the user of the courtyard and the passage to the latrine. The defendants-respondents filed joint written statement wherein they admitted the relationship and the fact of partition, but denied that the courtyard was kept joint for common use. Their specific case was that the courtyard fell to the share of defendant nos. 2 and 3, and neither the plaintiff nor the defendant No. 1 has any right, title or possession over the said courtyard, but as a gesture of good will, they were allowed temporarily to go to the latrine through that courtyard. Defendants 2 and 3 further pleaded that an alternative passage to the latrine is available through the Municipality lane and as such the plaintiff cannot claim right of easement through the courtyard. ( 3 ) LEARNED Courts below concurrently held that the courtyard in question fell to the share of defendant Nos. 2 and 3 and that it was never kept as joint property of the brothers. ( 3 ) LEARNED Courts below concurrently held that the courtyard in question fell to the share of defendant Nos. 2 and 3 and that it was never kept as joint property of the brothers. It was also held that the plaintiff-appellant has no right of easement through the courtyard as alternative route to the latrine is available through the municipality lane. These findings are under challenge in this appeal on the ground that the findings are perverse and contrary to the settled principles of law. ( 4 ) AT the stage of admission, the following substantial questions of law were formulated for consideration. " (iii) As to whether the defendants are stopped to challenge the plaintiffs claim of easement of necessity by their admission in pleading and whether the Court can arrive at a different conclusion than what has been admitted in the pleadings? (iv) As to whether the provisions of Sec. 39 of the Specific Relief Act are attracted where there is threat or invasion of the easementary right of the plaintiff? ( 5 ) MR. Dayananda Mohapatra, learned counsel for the appellants submitted that there is clear admission of the defendants in the written statement that the latrine was kept joint for use of all the brothers and that the plaintiff and defendant No. 1 were being allowed to pass through the courtyard to use that latrine. According to him, such admission itself establishes right of easement of the plaintiff-appellant and there was no scope for the Courts below to allow the evidence on that score or to record a finding contrary to the admission of the defendants. Relying on the sketch maps Exts. 3 and 4 prepared by the survey knowing Commissioner and the admissions made by the defendants in the written statement, Mr. Mohapatra submitted that the latrine in question is not accessible from the municipal lane without passing through the door and passage, which are parts of the suit courtyard, but by ignoring such sketch maps and the admissions of the defendants in the written statement, learned first appellate court committed error on record and accordingly, his finding that there is alternative passage to the latrine available through municipality lane should be interfered. Mr. Mr. Mohapatra also indicated that although there is clear pleading about right of easement in the plaint, learned first appellate court wrongly observed that there is no pleading regarding claim of easement, which also amounts to error on record. According to him, such perverse approach and error on record can be interfered in the second appeal. In this regard, he relied on the case of Hero Vinoth (minor) v. Seshammal, 2006 air SCW 2833. ( 6 ) MR. G. B. Jena, learned counsel appearing for the respondents, on the other hand, submitted that the concurrent finding of the Courts below on the factual aspect, howsoever erroneous, cannot be interfered in Second Appeal and therefore, the contention from the side of the appellant does not deserve consideration. In support of his contention, he relied on the cases of thiagarajan and others v. Sri venugopalaswamy B. Koil and others, 2004 (3) Supreme 474 : AIR 2004 SC 1913 and mst. Sugani v. Rameshwar Das and another, 2006 (4) Supreme 684 : AIR 2006 SC 2172 . Mr, Jena also submitted that the findings of the 1st appellate Court are neither contrary to the materials on record nor perverse and hence, those findings do not call for any interference. ( 7 ) SECTION 100, C. P. C. clearly says that the Second Appeal is to be entertained by the High Court if the case involves a substantial question of law. While defining the jurisdiction of the Second Appellate Court, the Apex Court in the case of Sir Chunilal v. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. , 1962 Supp (3) SCR 549 : AIR 1962 sc 1314 , Para 6 defined substantial questions of law with the following words : "the proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised by palpably absurd the question would not be a substantial question of law. " in the case of Mst. Sugani ( AIR 2006 SC 2172 ) (supra) also the Apex Court held as follows : "it is not within the domain of the High court to investigate the grounds on which the findings were arrived at, by the last Court of fact. It is true that the lower appellate court should not ordinarily reject witness accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are 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. " In the case of Thiagarajan ( AIR 2004 SC 1913 ) (supra) also the Apex Court maintaining the same view observed that where finding of facts by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own finding on reappreciation of evidence merely on the ground that another view was possible. The jurisdiction of the second appellate court to analyse the findings on fact, was however clarified in the case of Hero Vinoth (2006 AIR SCW 2833) (supra) by recording the following. observation : "the general rule is that High Court will not interfere with concurrent findings of the courts below. But it is not an absolute rule. The jurisdiction of the second appellate court to analyse the findings on fact, was however clarified in the case of Hero Vinoth (2006 AIR SCW 2833) (supra) by recording the following. observation : "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 recognised 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 tiie 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. " From the above noted observations it is no more in doubt that Court of second appeal can interfere with the concurrent findings of the Courts below, if the Courts below have drawn wrong inferences from proved facts by applying law erroneously or have wrongly cast the burden of proof, or have ignored material evidence or acted on no evidence. ( 8 ) IN the instant case, the claim of the appellant is that the learned Courts below recorded their findings ignoring the admissions made by the defendants in the written statement, sketch map and the report of the survey knowing Commissioner and so, those aspects can be re-examined by the court of second appeal. There is clear admission in the written statement as well as in the evidence of D. Ws. 1 to 3 that the latrine was kept joint for use of all the four brothers and that the plaintiff and defendant No. 1 were being allowed access to that latrine through the courtyard for some time. The Courts below ignored those admissions and held that the plaintiff has no right of easement through courtyard basically on the ground that alternative approach to the common latrine is available through the municipal lane. It is worthwhile to note that on the direction of the trial Court, the survey knowing commissioner, P. W. 2 visited the spot in presence of the parties, prepared the sketch maps, Exts. 3 and 4 along with the report ext. It is worthwhile to note that on the direction of the trial Court, the survey knowing commissioner, P. W. 2 visited the spot in presence of the parties, prepared the sketch maps, Exts. 3 and 4 along with the report ext. 5 and those maps and reports were admitted in evidence without any objection and were virtually left unchallenged. These documents clearly show that there is a door on the western side wail of the courtyard and from the Municipal lane one has to pass through that door and through the narrow passage of one and half feet wide to go to the common latrine and that the said door and narrow passage are part of the courtyard. The existence of such a door and narrow passage has also been admitted by D. W. 2, who is defendant No. 2 and his witness, d. W. 3. The evidence on record and the admission of D. Ws. Thus indicate that one cannot go to the latrine from the Municipal lane without passing through on the said door and narrow passage, which are part of the courtyard. So, the finding of the Courts below that alternative route is available to the plaintiff to go to the latrine without using the courtyard is totally contrary to the evidence and admissions on record. In other words, the findings in this regard are perverse and based on no evidence. So, as per the ratio laid down in the case of Hero Vinoth (2006 AIR SCW 2833) (supra), this Court can interfere with such perverse findings. Furthermore, the admission of a party or his agent in a proceeding is admissible under s. 18 of the Evidence Act and by hoards of decisions of the Apex Court and various High courts, it has now settled that facts admitted by a party in its pleading need not be proved and the evidence is not to be permitted to the party making admission to overcome his own admission in the pleading. So, the admission of defendant Nos. 2 and 3 should have been taken into account before deciding the issue. So, the admission of defendant Nos. 2 and 3 should have been taken into account before deciding the issue. However, in view of the pleadings and statements that such access to the latrine through the courtyard was being permitted as a gesture of good will and not as a matter of right, the Court had legal jurisdiction to entertain evidence of the parties and record any finding consistent with the evidence available. ( 9 ) LEARNED counsel for the respondents also argued that the claim of easement not having been specifically pleaded in the plaint, the relief regarding right of easement was not available to the plaintiff. It is worth while to note, that in paragraph 10 of the plaint that the plaintiff pleaded about his easementary right over the courtyard for going to the latrine. It was also admitted case of the parties that the latrine was kept for common use of all the brothers and or some times the plaintiff and his tenants were using the courtyard for the purpose of going to the latrine. In such backdrop, them was no scope for a finding that pleading about easementary right or easement of necessity is wanting in the plaint. ( 10 ) THE other question of law raised relating to S. 39 of the Specific Relief Act was not pressed by any of the parties and, therefore, no answer to that aspect is necessary to be recorded. ( 11 ) FOR the above reasons, the second appeal is allowed, the judgment and decree of the 1st appellate Court in Title Appeal no. 11 of 1985 (T. A. No. 34 of 1984 G. D. C.)are set aside and the matter is remitted back to that Court for fresh disposal according to law in the light of the observations made in this Judgment. ( 12 ) PARTIES are to bear their own costs in the appeal. Appeal allowed. .