JUDGMENT S.N SATYA NARAYANA, J.—This is defendants’ second appeal challenging the judgment and decree dated 12.12.2001 passed in O.S. No. 234/1989 on the file of Civil Judge (Jr. Dn.), Hiriyur confirmed by judgment and decree dated 6.8.2002 in R.A. No. 36/2002 on the file of Civil Judge (Sr. Dn.), Chitradurga. For the sake of convenience the parties to this appeal are referred to by their rank before the trial Court. 2. Brief facts leading to this appeal are as under: Plaintiffs are owners of suit schedule properties having purchased the same from the members of family of Ugra Narasimhaiah. Defendants are the owners of property, which is situated adjacent to the suit schedule properties. The properties, which are part of this dispute are several bits of land situated in Alur village, Hiriyur Taluk. The said properties are situated to the east of V.V. Channel, which is running from north to south. On the eastern side of V.V. Channel there is existence of PWD Road which proceeds from south to north and takes a right turn towards east. On the eastern side of said road the properties of plaintiffs are situated which are suit schedule properties bearing Sy. Nos. 256/2, 324, 325, and 326. On the north of said properties there is remaining portion of 256/2, 330, 331, 329/1, 329/2, 332, 328 and 333. The entire property belonging to plaintiffs under the aforesaid survey numbers forms a compact block. To the immediate east of said properties the property belonging to defendants bearing Sy. Nos. 327, 336, 335 and 334 is situated. Location wise, properties of plaintiffs has a road on its western side between their property and V.V. Channel and also a road on its northern side, which is PWD road proceeding towards Tumkur. So far as defendants are concerned, property bearing Sy. No. 324 of defendants is facing PWD road proceeding from west to east and behind the said Sy. No. 334 Sy. Nos. 335, 336 and 327 is situated. 3. Incidentally, dispute between the parties is concentrated in respect of right of way commencing from the road situated on eastern side of V.V. Channel, which is a cart track in existence from the beginning of land bearing Sy. No. 256/2 and proceeding towards east over properties bearing Sy. Nos. 324, 325 and 326. The claim of plaintiffs is that the said cart track ends in Sy. No. 326. No. 256/2 and proceeding towards east over properties bearing Sy. Nos. 324, 325 and 326. The claim of plaintiffs is that the said cart track ends in Sy. No. 326. After this property the property of defendant in Sy. No. 327 is situated. With this background the suit for permanent injunction was filed by plaintiffs contending that there is an attempt by defendants to encroach into their property to make use of “AB” cart track, which is in existence in their properties for their exclusive use. According to plaintiffs, suit schedule properties, i.e., Sy. Nos. 256/2, 324 to 326 are properties purchased by them from its erstwhile owner Ugra Narasimhaiah under Ex. D20. It is also their case that the cart track, which is shown in the sketch annexed to the plaint, which is marked as Ex. P1 is the road which is in existence for their exclusive use. 4. In the proceedings, the defendants entered appearance, filed their written statement contending that plaintiffs predecessor in title, namely, Ugra Narasimhaiah and his family members who are not only owners of suit schedule properties and also other properties had utilised an abandoned Nakasha road, which was passing through properties belonging to the family of Ugra Narasimhaiah. The said road was proceeding from Alur to Yeraballi. The total extent of said road which was passing through properties of Ugra Narasimhaiah’s family measured more than 1 acre and the said road was not being utilised by any one. Hence, when V.V. Channel was formed and the potentiality of land improved the abandoned Nakasha road was also utilised for cultivation by them. In this behalf a representation was given by villagers including father-in-law of 1st defendant which resulted in certain proceedings taking place, wherein the Tahsildar and Assistant Commissioner after holding enquiry with the parties had come to an arrangement wherein plaintiffs predecessor in title Ugra Narasimhaiah had agreed to leave a portion of his property for the benefit of defendants and other villagers to pass through the road to be formed in his property in Sy. No. 256/2, 324 to 326 so as to reach Sy. No. 327 and to reach the other lands beyond that as an alternate road. 5. With these rival contentions the trial Court framed the following issues: “(1) Whether the plaintiffs prove their lawful possession over the schedule property as on the date of filing of the suit? No. 256/2, 324 to 326 so as to reach Sy. No. 327 and to reach the other lands beyond that as an alternate road. 5. With these rival contentions the trial Court framed the following issues: “(1) Whether the plaintiffs prove their lawful possession over the schedule property as on the date of filing of the suit? (2) Further plaintiff proves that defendants have no right of way over the AB cart track shown in the rough sketch? (3) Whether the plaintiffs are entitled for the relief as sought for? (4) To what decree or the relief parties entitled? Additional issues (1) Whether the defendants prove that they have perfected their right of way over AB schedule cart track road by way of prescription or as an easement of necessity? 6. Thereafter, parties to the suit led evidence. On behalf of plaintiffs, 1st plaintiff examined himself as P.W. 1 and two other independent witnesses, namely, Ramakrishnappa and B.N. Thippeswamy as P.Ws. 2 and 3. P.W. 2 is the resident of same village, whereas P.W. 3 is an Advocate who was appointed as Court Commissioner in earlier suit O.S. No. 34/1984, which was filed by plaintiffs against other persons who were trying to claim right of way through suit schedule properties and other properties belonging to them. In support of their case the plaintiffs in all produced and marked 31 documents as Exs. P1 to P31. On behalf of defendants, 3rd defendant examined himself as D.W. 1 and in support of their case they examined D.W. 2 H.S. Rangadasappa, an advocate who was appointed as Court Commissioner. They also examined G.S. Puranik as D.W. 3, who was Shirasthedar, who produced several documents from the office of revenue department and Narendra as D.W. 4, who is vendor to a portion of properties purchased by plaintiffs. In support of their case defendants in all produced 128 documents which are marked as Exs. D1 to D128. 7. The trial Court on appreciation of the oral and documentary evidence and also on the finding arrived at by inspection of the properties personally answered issue Nos. 1 to 3 in the affirmative and additional issue No. 4 in the negative and consequently decreed the suit of plaintiffs as prayed for. While decreeing the suit the trial Court held that the cart track as shown in Ex. 1 to 3 in the affirmative and additional issue No. 4 in the negative and consequently decreed the suit of plaintiffs as prayed for. While decreeing the suit the trial Court held that the cart track as shown in Ex. P1 is the road which is exclusive road for the use of plaintiffs and situated within the boundaries of plaintiffs properties and does not go beyond that and does not give access to defendants through the said road to reach their property bearing Sy. No. 327. The trial Court further held that defendants have access to their property from PWD road, which is situated on the northern side of their property. The defendants being aggrieved by the same challenged the said judgment and decree in R.A. No. 36/2002. 8. The 1st appellate Court on appreciation of the findings of the trial Court framed the following points for consideration: (1) The defendants prove easementary right of cart track through AB to reach defendants Sy. No. 327 and other lands by way of necessity or prescription as pleaded? (2) Whether the judgment and decree of the trial Court requires interference? (3) What order? 9. After hearing the Counsel for defendants and plaintiffs and on reappreciation of the oral and documentary evidence available on record 1st appellate Court answered point Nos. 1 and 2 in negative thereby confirming the finding of trial Court on all aspects and dismissed the appeal of defendants. Being aggrieved by the same, defendants have come up in second appeal before this Court on the substantial questions of law. 10. This Court after hearing the counsel appearing for appellants accepted the substantial questions of law framed in appeal, which are as under: (1) Whether the Courts below were justified in holding that Ex. P9 and Ex. D38 as one and the same? (2) Whether the Courts below were justified in granting a decree misconstruing the two documents as one and the same? (3) Whether the Courts below have properly considered Ex. D19? And admitted the appeal for consideration. 11. Heard the Counsel for plaintiffs and defendants, perused the concurrent findings given by both the Courts below on the issues and points framed for consideration. 12. The case of defendants is that the finding rendered by both the Courts below is based on misconception of documents, more particularly, Exs. P38 and P9. Ex. P9 and Ex. 11. Heard the Counsel for plaintiffs and defendants, perused the concurrent findings given by both the Courts below on the issues and points framed for consideration. 12. The case of defendants is that the finding rendered by both the Courts below is based on misconception of documents, more particularly, Exs. P38 and P9. Ex. P9 and Ex. D38 both are record of rights. However, on perusal of these documents it is seen that both the documents are not of much consequence to the dispute in hand. Further it is seen that there is no error in appreciation of these documents which are inconsequential. Therefore, the substantial questions of law 1 and 2 framed by appellants/defendants accepted by this Court at the time of admission are without any basis and do not call for consideration by this Court. Hence, the same are answered in negative and held that the same do not amount to substantial questions of law and admission of this appeal accepting the same is incorrect. Hence, both the substantial questions of law raised in the appeal and accepted by this Court at the time of admission as substantial questions of law for consideration are answered in negative holding that they do not form substantial questions of law as contemplated under Section 100 of Cr.P.C. 13. Now coming to 3rd substantial question of law framed in this appeal is regarding appreciation of evidence so far as it pertains to Ex. D19, which is certified copy of the partition deed recording partition which has taken place in the family of Ugra Narasirnhaiah from whom plaintiffs have purchased suit schedule properties. 14. Admittedly, the genesis of dispute between the parties dates back to the time of Ugra Narasirnhaiah, plaintiffs’ predecessor in title to the properties on which disputed road is situated. The entire pleadings of suit is based on the events which have taken place during the life time of Ugra Narasimhaiah with reference to the properties which belong to him prior to 1956 and 1958 and in respect of his enjoyment of said properties which resulted in defendants claiming right of way over the road formed on suit schedule properties. Admittedly, besides suit schedule properties the family of Ugra Narasimhaiah had several other lands. The entire family of Ugra Narasimhaiah which remained undivided at that time was in possession, cultivation and enjoyment of the same. Admittedly, besides suit schedule properties the family of Ugra Narasimhaiah had several other lands. The entire family of Ugra Narasimhaiah which remained undivided at that time was in possession, cultivation and enjoyment of the same. It is also seen that there was a partition in the said family vide Ex. P19, dated 12.3.1977. Admittedly, the present suit is initiated in the year 1989 by plaintiffs who have acquired title to suit schedule properties from Ugra Narasimhaiah and his family members. At an undisputed point of time in 1977 the status of suit schedule properties and the way in which it is dealt with by the members of Ugra Narasimhaiah’s family is seen in Ex. P19, wherein all the properties belonging to the family of Ugra Narasimhaiah is divided among several members of said family. Under Ex. P19 the suit schedule properties are allotted to the share of D.W. 4, Narendra, fromwhom the plaintiffs have purchased the said properties under Ex. D20. 15. A perusal of Ex. P19 it is seen that while allotting suit schedule properties it is clearly stated that property bearing Sy. No. 324 to 326 are bound by road on the north side, whereas Sy. No. 326 which is situated adjacent to defendants property in Sy. No. 327 has a road in existence on its eastern side. Beyond that road is the property of defendants. The contention of plaintiffs is that said road is cart track, which is in existence for their exclusive benefit. However, the documents, which are at Ex. D19 and D20 speak otherwise. They do not say that said road is private road. It is also a fact that though the documents do not specify that as a public road, the location of said road will have to be appreciated in the light of several documents, which are produced by D.W. 3 from the office of revenue department, which are marked in ‘D’ series. 16. On going through the said documents it is seen that at an undisputed point of time, in the year 1956-1958 an extent of nearly 1 acre of land which was in existence in the form of Nakasha road going through the property of Ugra Narasimhaiah was utilised by him for cultivation. 16. On going through the said documents it is seen that at an undisputed point of time, in the year 1956-1958 an extent of nearly 1 acre of land which was in existence in the form of Nakasha road going through the property of Ugra Narasimhaiah was utilised by him for cultivation. In that behalf there were proceedings before various authorities, wherein Ugra Narasimhaiah agreed to give up an extent of about 19 guntas of land for formation of road from PWD road which is existing on the eastern side of V.V. Channel to reach up to the land of Beeregowda, i.e., father-in-law of 1st defendant and owner of land bearing Sy. No. 327 for the benefit and enjoyment of Beeregowda and other villagers. 17. In this behalf though there are several documents produced by D.W. 3, Shiresthedar of Revenue Department the document wherein the said extent of 19 guntas land being declared as a road by revenue department is not produced. Therefore, in the RTC of Sy. Nos. 256/2 and 324 to 326 there is no reference to existence of land specified as phut kharab for the road. The plaintiffs taking advantage of the same are trying to put forth their case that ‘AB’ cart track which is in existence on the suit schedule properties is a private land which is in existence for their exclusive use and the same is not available for the benefit of others. However, the evidence which is given by D.W. 4 would go to the extent of admitting the existence of said road for the benefit of not only for defendants and also for other villagers even during the lifetime of his father Ugra Narasimhaiah. It is seen that both the Courts below have not given any weightage to the evidence of D.W. 4 and also the documents, which are produced by D.W. 3 and marked through him, there is perversity on the part of both the Courts below in appreciating the same resulting in miscarriage of justice. 18. The counsel appearing for appellants would submit that there is error on the part of both the Courts below in appreciation of the material evidence available on record and, therefore, it has resulted in miscarriage of justice. 18. The counsel appearing for appellants would submit that there is error on the part of both the Courts below in appreciation of the material evidence available on record and, therefore, it has resulted in miscarriage of justice. It is also their case that during the pendency of suit the Presiding Officer of trial Court has inspected the properties and has opined that the road in existence does not go beyond the suit schedule properties and make way for the defendants to use the same as road from the road adjacent to V.V. Channel to their property. The counsel would contend that there is error in appreciation of evidence by both the Courts below which resulted in concurrent error in giving a finding to the extent that the cart track in existence on the suit schedule properties is a private land. It is also his contention that the inspection made by the trial Court cannot be the basis to come to a conclusion that the cart track in existence is only for the exclusive use of plaintiffs and where there is perversity in appreciation of evidence available on record the concurrent finding of fact can be interfered with in second appeal under Section 100 Cr.P.C. In this behalf the appellants rely upon the following decisions of the Apex Court. 1. In the matter of Ugam Singh and another vs. Kesrimal and others, reported in AIR 1971 SC 2540 , wherein it is held as under: “(C) Civil P.C. (1908), Order 18, Rule 18—Inspection by Court— Inspection made only for purpose of understanding evidence—Judgment, not being based solely on result of personal inspection, is not vitiated.” 2. In the matter of Krishna Mohan Kul @ Nani Charan Kul and another vs. Pratima Maity and others, reported in AIR 2003 SC 4351 , wherein it is held as under: “(C) Civil P.C. (5 of 1908), Section 100—Concurrent findings of fact—Can be interfered with where trial Court and/or first Appellate Court misdirected themselves in appreciating question of law and placed onus on wrong party.” 3. In the matter of Ramlal and another vs. Phagua and others, reported in AIR 2006 SC 623 , wherein it is held as under: “(B) Civil P.C. (5 of 1908), Section 100—Finding of fact—Both lower Courts concurrently erred in not appreciating oral and documentary evidence properly—High Court is at liberty to re-appreciate evidence and record its own conclusion for reversing orders passed by lower Courts.” 4. In the matter of Mariam Hussain vs. Syedani and others, reported in ILR 2007 Kant. 2715, wherein it is held as under: “Both the Courts below have not only misread the evidence on record, but ignored the material evidence on record. Hence, there is a concurrent error committed by both the Courts below. The judgment and decree passed by both the Courts below are set aside.” 19. Per contra, the counsel appearing for respondents/plaintiffs would submit that the findings given by the Courts below on appreciation of the oral and documentary evidence cannot be interfered with in the second appeal under Section 100 Cr.P.C, however, erroneous the finding may be. In support of the same, the respondents would rely upon the following decisions: 1. In the matter of Gurdev Kaur and others vs. Kaki and others, reported in (2007) 1 SCC 546 , wherein the Apex Court has discussed at length the general principles, nature and scope of Section 100 and also the Scope of Section 100 as it stood prior to 1976 and subsequent to that with reference to the historical perspective of the said provision and considering the legislature intent behind permitting second appeal and how it should be dealt with as before decided in catena of cases and the Apex Court also at length has discussed the scope of Section 100 and the restrictions and limitations within which this Court can hear the second appeal subject to the limits of substantial question of law if any that arises for consideration in the said appeal. 2. In the case of Bachhaj Nahar vs. Nilima Mandal and others, reported in AIR 2009 SC 1103 . 3. In the matter of Narayanan Rajendran and another vs. Lekshmy Sarojini and others, reported in (2009) 5 SCC 264 . 20. 2. In the case of Bachhaj Nahar vs. Nilima Mandal and others, reported in AIR 2009 SC 1103 . 3. In the matter of Narayanan Rajendran and another vs. Lekshmy Sarojini and others, reported in (2009) 5 SCC 264 . 20. On going through the aforesaid decisions which are relied upon by plaintiffs and defendants in the background of the substantial question of law it is seen that no doubt the scope of this Court under Section 100 Cr.P.C. is limited. As could be seen from the said provision this Court if it is satisfied that the case involves a substantial question of law, it can formulate the same and consider the same. Now coming to the third substantial question of law, what is to be seen is, whether improper and perverse appreciation of the evidence available on record would amount to substantial question of law. No doubt, this point is put to rest by catena of decisions rendered by the Apex Court to the effect that framing of question to ascertain perversity in appreciation of evidence on record would definitely amount to substantial question of law. All the judgments that are relied upon by the plaintiffs/respondents would not negate the said position of law. No doubt, all the decisions relied upon by the plaintiffs/respondents would only say that the limited scope within which the High Court should confine itself to consider the second appeal with reference to the substantial question of law that is framed in the second appeal. They do not say that if there is perversity in appreciation and non-appreciation of evidence on record the same cannot be treated as substantial question of law in second appeal. 21. In the instant case, as could be seen Ex. P19 is first of the documents under which plaintiffs vendor acquired title to the suit schedule properties. In the said document, while allotting suit schedule properties in favour of their predecessor in title while describing the same the said properties are described with schedule having road. On its northern side it has land bearing Sy. No. 324 to 326 and also a road in existence on the eastern side of Sy. No. 326 which is adjacent to the property of defendants. It is further seen that based on the title derived by plaintiffs predecessor under said Ex. P19 he has conveyed the suit schedule properties to plaintiffs under Ex. D20. No. 324 to 326 and also a road in existence on the eastern side of Sy. No. 326 which is adjacent to the property of defendants. It is further seen that based on the title derived by plaintiffs predecessor under said Ex. P19 he has conveyed the suit schedule properties to plaintiffs under Ex. D20. The schedule of suit schedule properties in the aforesaid sale deed, Ex. D20, is similar to the one that is there in Ex. P19, which clearly establishes that there is a road in existence on the northern side of suit schedule properties. It is also not in dispute that existence of road in the said place is accepted by D.W. 4 in his evidence stating that the said road was there even during the lifetime of his father Ugra Narasimhaiah. The Courts below have failed to appreciate the admission of D.W. 4 in the light of the pleadings and other documentary evidence, which are available on record, which discloses that at an undisputed point during 1950’s, there was a dispute between Ugra Narasimhaiah’s family and other villagers regarding existence of certain Nakasha road, which was in existence in their property and Ugra Narasimhaiah agreeing to leave certain portion of his property to be utilised as road by the father-in-law of 1st defendant and other villagers. There are series of documents in which said Ugra Narasimhaiah has affixed his signature making a statement that he would be leaving the said land for the purpose of formation of road. The signature of Ugra Narasimhaiah on the said document is not disputed by D.W. 4, who is none other than his son. The contents of these documents are not properly appreciated by the Courts below in the light of Ex. P19, which is the original document of title under which the plaintiffs predecessor acquired the suit schedule properties in a family partition and thereafter passed on to plaintiffs under Ex. D20. 22. This Court on going through the concurrent findings of the trial Court as well as 1st appellate Court find that both the Courts below have not appreciated the said evidence available on record and have proceeded to accept the pleadings of plaintiffs and evidence and proceeded to decree the suit and confirmed the same in 1st appeal. D20. 22. This Court on going through the concurrent findings of the trial Court as well as 1st appellate Court find that both the Courts below have not appreciated the said evidence available on record and have proceeded to accept the pleadings of plaintiffs and evidence and proceeded to decree the suit and confirmed the same in 1st appeal. Therefore, this Court find that there is not only an error in appreciation of the evidence of plaintiffs and defendants with reference to Ex. D19 and D20 and several other documents, the reasons given by Courts below are perverse and does not stand to reason. On proper appreciation of evidence and documents, conclusively establish that there was a road in existence from PWD road situated to the east of V.V. Channel up to the defendants property in Sy. No. 327 passing through the suit schedule properties and beyond that for the purpose of defendants and other members of the village. Therefore, the substantial question of law is answered in affirmative, in favour of appellants/defendants. 23. In the result, the appeal filed by defendants is allowed. The judgment and decree passed by the trial Court in O.S. No. 234/1989 dated 12.12.2001 in granting injunction in favour of plaintiffs against defendants is set aside, consequently, the judgment and decree passed by 1st appellate Court in R.A. No. 36/2002 dated 6.8.2002 is also set aside. In the result the suit of plaintiffs is dismissed without any order as to costs.