JUDGMENT : SANDEEP N. BHATT, J. 1. This second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’ for short) being aggrieved and dissatisfied with the judgment and decree dated 1.3.2024 passed in Regular Civil Appeal No. 25 of 2011 by the 7th Additional District and Sessions Judge, Ahmedabad (Rural) Ahmedabad confirming the order dated 18.6.2011 passed in Regular Civil Suit No. 26 of 2008 by the learned Principal Civil Judge, Sanand, suggesting the following substantial questions of law: “(1) Whether the ld. Appellate Court’s judgment is perverse as it fails to determine points for consideration and is contrary to the provisions of Order XLI Rule 31 of the Civil Procedure Code, 1908? (2) Whether the Ld. Court’s interpretation for Issue No. 3 is perverse and contrary to the evidence produced on record? (3) Whether the Ld. Courts erred in the interpretation of Clause 5 of the registered sale deed between the litigants which specifies a right of way? (4) Whether the impugned judgment is perverse in interpreting Clause 5 of the registered sale deed dated 31.03.2006 that it inherently establishes that a necessity subsisted at the time of sale for the Appellant to claim a right of way? (5) Whether the impugned judgment is perverse in construing discontinuous easement as having been extinguished? (6) Whether the Ld. Courts failed to consider that the Defendants’ contravention of the injunction order amounted to restricting the easement, making it less convenient for the Plaintiff to enjoy its immovable property? (7) Whether the Ld. Courts’ interpretation of an alternate road is in consonance with the pleadings of the Plaintiff so as to disentitle the Plaintiff from claiming a right of way? (8) On such other questions of law as may be framed at the time of hearing of this Appeal.” 2. The appellant is the original plaintiff before the learned trial court and the respondents are the original defendants. The parties are addressed with their original status for the sake of convenience. 3. Heard learned advocates for the parties. Learned advocate Ms. The appellant is the original plaintiff before the learned trial court and the respondents are the original defendants. The parties are addressed with their original status for the sake of convenience. 3. Heard learned advocates for the parties. Learned advocate Ms. Jani for the appellant-plaintiff has submitted that the plaintiff filed the suit seeking a declaration that the plaintiff has a right of way which passes through the defendant’s property at Survey No. 199, situated at Village Nidharad, Taluka Sanand, District Ahmedabad connecting the plaintiff’s property at Survey No. 185/1 P with the Sanandkadi main road (subject road) by specifically describing the passage as a twenty feet road which connects to the Sanand- Kadi main road which runs from North to South; that the primary contention of the appellant is that the subject road is the only available passage for thoroughfare and no alternate road exists; that the plaintiff has established that the subject road has been in use since 1995 that the layout plan provides for internal roads; the consolidated layout plan was sanctioned for various survey numbers of the plaintiff and defendants. 3.1 Learned advocate Ms. Jani further submitted that the director of the plaintiff has stated in his deposition that the land bearing survey nos. 185/1 and 196/2 was purchased in and around July, 1994 and the factory was put up pursuant to the NA permission and layout plan and all along the road in question which passes through the land of the defendant bearing survey no. 199 was used to access the factory and except the said passage, there is no other alternate road available, even in the cross-examination, he has clarified that the said road was constructed in 1999 and used as a thoroughfare, which is not disproved by the defendants. In the cross-examination it is stated by plaintiff’s other witness who was the former director that there is a neliya adjoining the suit property which is approximately three to four feet, except this there is nothing stated to the contrary. 3.2 Learned advocate Ms. Jani has submitted that as against this, the defendants have failed to show that there is an alternate way except that the defendant no. 2 has stated in his examination-in-chief that there is a pagdandi near the wall of the plaintiff-company which is used by others also for access. 3.2 Learned advocate Ms. Jani has submitted that as against this, the defendants have failed to show that there is an alternate way except that the defendant no. 2 has stated in his examination-in-chief that there is a pagdandi near the wall of the plaintiff-company which is used by others also for access. She submitted that the only witness of the defendants has stated this, which itself shows that it is a passage which cannot be used by vehicles. She submitted that it is sufficient established on the record that the original defendants purchased the land knowing very well about the layout plan and the suit road was the only road for the plaintiff to access its land. 3.3 Learned advocate Ms. Jani has further submitted that the finding of the learned trial Court that the alternate road is a neliya relying on a panchanama drawn by the Court Commissioner, which says that the neliya is a 12 feet road, not a thoroughfare is based on no evidence as there is no record to show that there is any other road apart from this neliya and the same is at the most of 12 feet i.e. 3 meters and is not even depicted as a thoroughfare which will connect the land of the plaintiff to the main road and which can be used as passage for men, material or vehicles needed for a factory of petrochemicals and the defendants have failed to discharge their burden to prove that there is an alternate way. 3.4 Learned advocate Ms. Jani has strongly harped on the point that the defendants have relied on transfers which are not part of the record and proceedings and have attempted to avoid discharging the onus of demonstrating an alternate road; that the conduct of the defendants immediately after filing the suit, which led to grant of mandatory injunction by the learned trial court confirmed by the learned appellate court, this Court and the Hon’ble Apex Court also shows that the defendants have consistently failed to establish and identify even prima facie an alternate road to access the suit land and the said injunction has continued throughout as the defendants have not led any evidence to mark and pinpoint the alternate way. 3.5 Learned advocate Ms. Jani has further submitted that the defendants’ land at survey no. 3.5 Learned advocate Ms. Jani has further submitted that the defendants’ land at survey no. 199 was transferred by the former director of the plaintiff with a clear understanding that the road through survey no. 199 will continue to be used as such by the plaintiff and that considering the commonality and mutuality of interest, the plaintiff claims easement by grant and alternatively, easement of necessity and in absence of alternate road, it is likely to result into an irreversibly prejudicial situation, where the plaintiff is landlocked and its business will come to a grinding halt. 3.6 Learned advocate Ms. Jani, relying on the judgment in the case of Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545 , submits that 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 and also that a second appeal should be entertained where a question directly and substantially affects the rights of parties or where the courts below have ignored material evidence or have acted on no evidence or drawn wrong inferences from proved facts by applying the law erroneously or have wrongly cast the burden of proof. 3.7 She, therefore, submitted that both the learned courts below have erred in dismissing the suit and appeal which needs to be interfered with by this Court in this second appeal by allowing this appeal and considering the substantial questions of law as suggested. 4. Per contra, learned senior advocate Mr. Raval for the respondents-defendants has submitted that there are concurrent findings of the both the learned courts below and they have dismissed the suit and appeal by giving detailed reasons, which are not required to be interfered with in this second appeal. 4.1 Learned senior advocate Mr. Raval for the defendants has pointed out certain undisputed facts viz. Raval for the respondents-defendants has submitted that there are concurrent findings of the both the learned courts below and they have dismissed the suit and appeal by giving detailed reasons, which are not required to be interfered with in this second appeal. 4.1 Learned senior advocate Mr. Raval for the defendants has pointed out certain undisputed facts viz. the registered sale deeds of the plaintiff at Exhs.77, 78, 79 and 80 do not mention any right of way either in the body of the sale deed or in the schedule of land; on the contrary, clause 5 and clause 14 of the registered sale deeds when read together, clearly shows that all rights of the seller including right of way etc., if any, and all are conveyed, and transferred to the defendant; that there is no mention in the schedule of land shown and described in the sale deed and the so called right of way, recording in four directions shown in the schedule of the said sale deed which actually binds the four directions of the property, which is discussed by the learned trial court in detail in the impugned judgment. 4.2 Learned senior advocate Mr. Raval for the defendants further the plaintiff factory was closed for few years; the learned courts below have considered the maps at Exh.87 and has recorded finding of fact that the road mentioned in the layout plan passes through survey no. 200, 198 and 199 whereas the right of way is claimed to be passing through survey no. 199 only; that both the courts below have clearly drawn distinction of the roads shown in the panchayat map passing through three different survey numbers and not just as claimed by the plaintiff. 4.3 Learned senior advocate Mr. Raval for the defendants further submitted that both the learned courts below have dismissed the cases based on details analysis of pleadings, documentary evidence, oral evidence of the witnesses, two different panchanamas prepared by court commissioner as well as documentary and oral evidence of the defendants and after detailed scrutiny, have concluded that the plaintiff has failed to prove right of way from the land of the defendants. Further, the learned lower appellate court has categorically and in detail, appreciated each and every evidence, documentary evidence and oral evidence and the findings of the learned trial court and thereafter confirmed the judgment of the learned trial court. Further, the learned lower appellate court has categorically and in detail, appreciated each and every evidence, documentary evidence and oral evidence and the findings of the learned trial court and thereafter confirmed the judgment of the learned trial court. 4.4 Learned senior advocate Mr. Raval has submitted that the learned lower appellate court has noted the fact in the judgment that the land in question has been sold by the plaintiff on 13.2.2013 by registered sale deed, which is done during the pendency of the litigation, there is no mention of the pending litigation therein and also of any such right of way as claimed. 4.5 Learned senior advocate Mr. Raval for the defendants has submitted both the learned courts below have concurrently considered the issues that are framed, the documentary evidences produced by both the sides, oral evidences by witnesses of both the parties, two different panchanamas and report of the court commissioner and law with regard to the said issues and therefore there is no perversity in such findings of facts, no misleading of documents/evidences and no misinterpretation as well as misapplication of law and therefore, prayed to dismiss this second appeal as no substantial questions of law are involved in the present case. 5. In support of his submissions, learned senior advocate Mr. Raval has relied on the following citations: 1. Nazir Mohammed vs. J. Kamala, (2020) 19 SCC 57 2. Kashmir Singh vs. Harnam Singh, (2008) 12 SCC 796 3. Kondiba Dagadukadam vs. Savitribai Sopal Gujar, (1999) 3 SCC 722 4. Malavi Bhawarlal Ganeshji vs. Himmatnagar Nagarpalika Office, (2024) 0 JX (Guj) 65 5. Kiran Ramanlal Inamdar vs. Gujarat Housing Board, (2023) 0 JX (Guj) 238 6. Kanjibhai Godadbhai Chaudhari vs. Virsang Fuljibhai Chaudhari, (2023) 0 JX (Guj) 28 7. Veerayee Ammal vs. Seeni Ammal, (2002) 1 SCC 134 6. I have considered the rival submissions and also perused the material placed on record along with the impugned judgments. 7. The issue which revolves in this matter is whether the plaintiff has a right of way which passes through the defendants’ property at survey no. 199, situated at village Nidharad, Taluka Sanand District Ahmedabad or there is any other alternate way, as claimed by the defendants. The learned trial Court has framed the issues with regard to the right of way at issues nos. 2, 3, 6 and 7, which are as under: “2. 199, situated at village Nidharad, Taluka Sanand District Ahmedabad or there is any other alternate way, as claimed by the defendants. The learned trial Court has framed the issues with regard to the right of way at issues nos. 2, 3, 6 and 7, which are as under: “2. Whether the plaintiff proves that they are using the road for going into their land of ownership being new survey no. 185/1 paiki and new survey no. 196 paiki through the land of new survey no. 199 of Nidharad village since 1994 and therefore they have right to do so? 3. Whether the plaintiff proves that except the suit disputed road for accessing the land of the plaintiff, there is no other alternate road? 6. Whether the defendants proves that the plaintiff has no right to ingress and egress from the suit disputed road? 7. Whether the defendants proves that the road for ingress and egress into the land of the plaintiff is from the neliya road towards the east side adjacent to the wall of the survey no. 185/1?” 8. The learned trial Court has given the findings for the said issues as under: “2. In the negative. 3. In the negative. 6. In the affirmative. 7. Partly in the affirmative.” 9. Thereafter, the learned trial court has examined the documentary as well as oral evidence led by the parties viz. the deposition of the plaintiff, copies of the sale deeds, village forms, lay copy of layout plan, memorandum and articles of association, deposition of another director of the plaintiff, panchanamas and map done by the court commissioner, deposition of the defendants, copy of Exh.1 of Sp. C.S. No. 289 of 2006, copy of D.R.T. Appeal No. 38 of 2006 etc. 10. Thereafter, the learned lower courts have considered that the plaintiff-Ganpatbhai G Patel has admitted in cross-examination and the witness Rushabh G Jain has also admitted in cross-examination that alternative road i.e. Naliya is in existence and plaintiff also stated that the so called road did not exist when he joined the company; that the court commissioner reports and maps clearly mentioned existence of ‘naliya’ and a road that can be used by the plaintiff; that the map along with NA permission was prepared and submitted before the panchayat which clearly shows a naliya road passing through survey no. 185/1, survey no. 198 and survey no. 185/1, survey no. 198 and survey no. 200 which is undisputedly approved by the panchayat in June 1994 i.e. before execution of registered sale deed by which the land is purchased by the plaintiff on 19.7.1994, that the road mentioned in the layout plan passes through survey no. 200, 198 and 199 whereas the right of way is claimed to be passing through survey no. 199 only, that the courts below have clearly drawn distinction of the roads shown in the panchayat map passing through three different survey numbers and not just as claimed by the plaintiff. The learned trial court has observed that there is no documentary evidence to prove that the land of survey no. 199 was transferred by the former director of the plaintiff with a clear understanding that the road through survey no. 199 will continue to be used as such by the plaintiff. Further, it is observed by the learned trial court that on going through the map produced at Exh.87, it is not shown that the road mentioned therein is going towards the land of the plaintiff through the land of the defendants i.e. in the layout plan given by the District Panchayat, it seems that the road going towards the land of the plaintiff is different i.e. it is not clear that the road mentioned in the layout plan is the same as that of the suit disputed road; there is no documentary evidence to show that the plaintiff is using the said road since 1994; that there is no documentary evidence to show that there is easementary right in favour of the plaintiff; that considering the map and panchanama, it seems that the plaintiff is using the suit disputed road for ingress and egress as the said land of defendants’ ownership is open land and there is no legal right or authority to do so. Thereafter, it is observed that on perusing the layout plan at Exh.87, there is another road existing for ingress and egress into the land of the plaintiff, it cannot be believed that the suit disputed land is the only road for use of the plaintiff and there is no alternate road and that in the deposition of the witness of the plaintiff-Rushabhbhai, he has stated that there is neliya adjoining the suit property towards the east side which is also clear from the panchanama of the court commissioner and therefore, the learned trial court has held that it cannot be said that there is no alternate way. 11. The learned lower appellate court, on challenge to the said judgment of the learned trial court, has re-appreciated the evidence in detail, tested the findings of the learned trial court and further held that when the plaintiff has transferred the land to the defendants, when there is no mention of the road or any condition in that regard in the said document, then it is deemed that the plaintiff has relinquished the easementary right and even if there is any easementary right, it gets ended with such transfer of the land. 12. On perusing the impugned judgments, the documents produced with the paper book, submissions advanced by learned advocates for the parties, it transpires that the learned trial court has dealt with each and every aspect in detail, in proper perspective and in accordance with law. The learned lower appellate court, has re-appreciated the evidence, tested the judgment passed by the learned trial court and thereafter dismissed the appeal, which is also in detail. As regards the submission that the learned lower appellate court has not framed the points of determination as required under Order 41 Rule 31 of the CPC, though the learned lower appellate court has not framed the points of determination for each and every issue, everything is discussed in detail in the impugned judgment. 13. It is also necessary to refer to relevant provisions of the Easement Act, 1882, which read as under: “4. 13. It is also necessary to refer to relevant provisions of the Easement Act, 1882, which read as under: “4. “Easement” defined - An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. Dominant and servient heritages and owners - The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner. Explanation - In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage or anything growing or subsisting thereon. 5. Continuous and discontinuous, apparent and non-apparent, easements - Easements are either continuous or discontinuous, apparent or non-apparent. A continuous easement is one whose enjoyment is, or may be, continual without the act of man. A discontinuous easement is one that needs the act of man for its enjoyment. An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him. A non-apparent easement is one that has no such sign. 12. Who may acquire easements - An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created or on his behalf, by any person in possession of the same. One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property. No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease. 13. No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease. 13. Easements of necessity and quasi easements - Where one person transfers or bequeaths immovable property to another: (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement. (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. (c) if an easement in the subject of the transfer or bequest is necessary for enjoying 7other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement. (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons: (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. 14. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. 14. Direction of way of necessity - When [a right] to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out.” 14. Now, if the judgments cited by learned advocate for the plaintiff-appellant is perused, learned advocate Ms. Jani has relied on the judgment in the case of Hero Vinoth (minor) (supra). There cannot be any dispute regarding the ratio laid down in the said judgment, however, the same is not helpful to the case of the appellant and in the facts of the case, it is helpful to the respondent. The relevant paragraphs no. 16 to 24 and 27 to 29 of the said judgment read as under: “16. 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. 17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. 17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of hearing of the appeal has a right to argue that the case in the Court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence. 18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. vs. Century Spg. and Mfg. Co. Ltd. 1962 Supp. (3) SCR 549 : AIR 1962 SC 1314 , held that: (SCR pp. 557-558) “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 is palpably absurd the question would not be a substantial question of law.” 19. 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, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses 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 of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where 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 by ignoring material evidence. 20. 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. The 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 first 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 vs. 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 Dagadu Kadam vs. Savitribai Sopan Gujar, (1999) 3 SCC 722 ]. 21. The phrase “substantial question of law” as occurring in the amended Section 100 CPC is not defined in the Code. 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. 21. The phrase “substantial question of law” as occurring in the amended Section 100 CPC is not defined in the Code. 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 or Article 133(1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta vs. Ram Ditta, (1927-28) 55 IA 235 : AIR 1928 PC 172 the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal Case 1962 Supp. (3) SCR 549 : AIR 1962 SC 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao vs. Noony Veeraju, AIR 1951 Mad 969 : (1951) 2 MLJ 222 (FB): “When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.” This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: [Sir Chunilal Case 1962 Supp. (3) SCR 549 : AIR 1962 SC 1314 , SCR pp. (3) SCR 549 : AIR 1962 SC 1314 , SCR pp. 557-558] “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 is palpably absurd the question would not be a substantial question of law.” 22. In Dy. Commr. vs. Rama Krishna Narain, 1954 SCR 506 : AIR 1953 SC 521 also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 CPC. 23. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. [See Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 ] 24. The principles relating to Section 100 CPC relevant for this case may be summarised 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 the 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 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. 27. 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. 27. Therefore, there is no manner of doubt that the intention was clear that it was a grant and not an easement of necessity which could be extinguished. 28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But 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 by 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. Anyhow 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 recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised 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 41 of the Act which is applicable only to easement of necessity arising under Section 13. 29. 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 of 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 dominant 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 recognised 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.” 15. The judgments cited by learned senior advocate Mr. Raval are squarely applicable to the case on hand. Section 100 of CPC reads as under: “100. Second appeal: (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex-parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (2) An appeal may lie under this section from an appellate decree passed ex-parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” It is fruitful to refer the judgment in the case of Gurbachan Singh (Dead) through LRs. 2023 SCC Online SC 875 paragraphs 7, 14 and 15 which are reproduced as under: “7. The parameters of an appeal under Section 100, CPC passing muster are well established. The section itself dictates that such an appeal shall only be maintainable when the case involves a substantial question of law or that the appellate decree has been passed ex parte. the latter, obviously is not the case. This court has, in a multitude of decisions, expounded on what may be termed as a substantial question of law to satisfy the requirements of section 100. In Nazir Mohamed vs. J. Kamala (2-Judge Bench), it was observed: “27. In Hero Vinoth vs. Seshammal, (2006) 5 SCC 545 , this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. vs. Century Spg. and Mfg. Co. Ltd. AIR 1962 SC 1314 and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth vs. Seshammal, (2006) 5 SCC 545 are set out herein-below: (SCC p. 554, Para 21) “21. The phrase “substantial question of law” as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law” means - of having substance, essential, real, of sound worth, important or considerable. The phrase “substantial question of law” as occurring in the amended Section 100 CPC is not defined in the Code. 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 or Article 133(1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta vs. Ram Ditta, 1928 SCC Online PC 31 : (1927-28) 55 IA 235 : AIR 1928 PC 172 the phrase “substantial question of law” as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Chunilal V. Mehta and Sons Ltd. vs. Century Spg. and Mfg. Co. Ltd. AIR 1962 SC 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao vs. Noony Veeraju, 1951 SCC Online Mad 100 : AIR 1951 Mad 969 : [Chunilal V. Mehta and Sons Ltd. vs. Century Spg. and Mfg. Co. Ltd. AIR 1962 SC 1314 , AIR p. 1318, Para 5] “5........when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” 28. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law.” 28. To be “substantial” a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.” (Emphasis supplied) 14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a re-appreciation of evidence. While it is true that ordinarily, in second appeal, the court must not disturb facts established by the lower court or the first appellate court. However, it is also equally well recognised that this rule is not an absolute one or in other words, it is not a rule set in stone. In Nazir Mohamed (supra) this Court has recognised three conditions in which a court in such jurisdiction, may disturb findings of fact. They are: “(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. (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 15. A Bench of three learned Judges, recently in Balasubramanian vs. M. Arockiasamy (Dead) through LRs. had referred to, with approval judgment rendered in Ramathal vs. Maruthathal (two-Judge Bench) wherein it was observed that the restraint in interfering with questions of fact under the jurisdiction of second appeal, is not an absolute rule. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 16. Where the court is of the view that the conclusions drawn by the court below do not have a basis in the evidence led or it is of the view that the appreciation of evidence “suffers from material irregularity” the court will be justified in interfering with such findings.” 16. It is also fruitful to refer to the judgment of the Hon’ble Apex Court in the case of Nazir Mohamed vs. J. Kamala, AIR 2020 SC 4321 , wherein, it is observed in paragraphs 56, 57 and 59 as under: “56. As held by the Privy Council in Peri vs. Chrishold, (1907) AC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title. 57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. 59. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh vs. Gobinda Ghose. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.” 17. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.” 17. Considering the impugned judgment and observations made by the learned courts below, as mentioned hereinabove, this Court is of the opinion that the learned lower courts below have given cogent, convincing, just and proper reasons which are in accordance with law and in consonance with the material available on the record and after properly appreciating the documentary as well as oral evidence produced on the record and therefore, I do not find any infirmity or perversity or illegality in the said judgments, which is required to be interfered with in this second appeal. Hence, this second appeal is required to be dismissed as there are no substantial questions of law which are required to be framed and entertained. Accordingly, this appeal is dismissed at the admission stage itself. 18. In view of the dismissal of the appeal, civil application does not survive and hence, the same is also disposed of. At this stage, a request is made by learned advocate Ms. Jani for the plaintiff-appellant that the stay which is initially granted vide order dated 15.4.2008 and lastly extended by order passed below Exh.51 dated 1.3.2024 be extended further for a certain period. The said request cannot be accepted in view of the fact that when the plaintiff has transferred the land to the defendant without any condition and with all rights, as discussed in the impugned judgments, the defendant cannot be restrained from putting up any construction on the said land and by doing so, it will amount to injustice to the defendant. Hence, the request is rejected. A further request is made by learned advocate Ms. Jani for the plaintiff-appellant that as the factory is in progress, time of ten months be granted to relocate the said factory. This request also cannot be granted in view of the fact brought on record before the learned trial court and submission made by learned senior advocate Mr. Raval for the defendants that the factory is closed since few years, the electricity connection is also disconnected and therefore the request is not required to be accepted. This request also cannot be granted in view of the fact brought on record before the learned trial court and submission made by learned senior advocate Mr. Raval for the defendants that the factory is closed since few years, the electricity connection is also disconnected and therefore the request is not required to be accepted. Further, the defendants who are the decree holders since the year 2011 by virtue of the order passed in the suit, have already waited for reaping the fruits since then, and any further time granted in favour of the plaintiff, inspite of concurrent findings of the learned courts below and this second appeal being dismissed, will amount to delaying the defendants to reap the fruits of the decree. Hence, this request is also rejected.