Misconstruction of a partition deed can justify second appeal review where a granted easement is not lost by alternative access.

Misconstruction of a partition deed can raise a substantial question of law under Section 100 CPC, allowing second appeal interference where the lower courts applied the wrong legal principle to documentary evidence. The Supreme Court held that the High Court was justified in examining the true legal effect of the deed because the dispute was not confined to an easement of necessity. On the deed's terms, the right of way was an easement by grant, governed by the grant itself and not dependent on necessity. Section 41 of the Indian Easement Act did not extinguish that right merely because an alternative access later became available.

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Issues: (i) Whether the High Court was justified in interfering in second appeal under Section 100 of the Code of Civil Procedure, 1908 on the basis that the courts below had misread the partition deed and wrongly treated the right of way as an easement of necessity. (ii) Whether the right of way created by the partition deed was an easement by grant or an easement of necessity, and whether it could be extinguished under Section 41 of the Indian Easement Act, 1882 when an alternative access became available.

Issue (i): Whether the High Court was justified in interfering in second appeal under Section 100 of the Code of Civil Procedure, 1908 on the basis that the courts below had misread the partition deed and wrongly treated the right of way as an easement of necessity.

Analysis: Interference in second appeal is confined to substantial questions of law. A legal question arises where the lower courts misconstrue a document or apply the wrong legal principle while construing it. Concurrent findings are not immune from interference where they are based on misreading of documentary evidence, ignoring material evidence, or a wrong legal approach. Here, the lower courts proceeded on an erroneous assumption that the controversy concerned only an easement of necessity, whereas the real issue was the legal effect of the partition deed.

Conclusion: The High Court was justified in entertaining the second appeal and examining the true legal effect of the partition deed.

Issue (ii): Whether the right of way created by the partition deed was an easement by grant or an easement of necessity, and whether it could be extinguished under Section 41 of the Indian Easement Act, 1882 when an alternative access became available.

Analysis: The terms of the partition deed showed a reciprocal and permanent arrangement by which the parties granted each other specific rights of user over the respective portions. A right arising from grant is governed by the terms of the grant and does not depend on absolute necessity. Section 41 applies to easements of necessity, which end when necessity ceases, but it does not apply to an easement created by grant. Since the deed evidenced a grant, the existence of another access did not extinguish the right of way.

Conclusion: The right of way was an easement by grant, not an easement of necessity, and it was not extinguished under Section 41.

Final Conclusion: The challenge to the High Court's decision failed, as the right of way under the partition deed was a permanent granted easement and the dismissal of the suit was legally sustainable.

Ratio Decidendi: Misconstruction of a document creating rights in immovable property gives rise to a substantial question of law under Section 100 CPC, and an easement created by grant is controlled by the terms of the grant and is not extinguished merely because an alternative access later becomes available.

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