TaxTMI 
TaxTMI 
2006 (5) TMI 478
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....Chettiar and Aravamutha Chettiar. Under the said partition, 'C' Schedule items were allotted to Purushothaman Chettiar and 'E' schedule items were allotted to Aravamutha Chettiar. Under the said partition, a portion of property No.418/5, South Pidari Street, Seerkazi measuring 19'6" + 22'6" x 160'/2 was allotted to Purushothaman Chettiar and another portion to the east thereof measuring 22'6" x 160' was allotted to the share Aravamutha Chettiar. On the death of Aravamutha Chettiar, his portion of R.S. No.418/5 was purchased by plaintiff from his legal heir. Defendant is the widow of Purushothaman Chettiar and her property is situated on the western side of plaintiff's property, which was originally allotted to Aravamutha Chettiar. According to plaintiff, he is entitled to enclose entire property and defendant has no right of access to the backyard of her premises, through the passage (lane) situated in the eastern extremity of plaintiff's property and the backyard of plaintiff's property. Defendant was causing obstruction in the construction of compound wall by him on the 'GH' line and the same was to be prevented by a decree....
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....rts below are correct in stating that the easement created got extinguished when there is no change in physical features of the property covered render that easement right as useless or unnecessary? The High Court noted that the questions which need consideration were the questions a & d. The High Court found that the approach of the Trial court and the first appellate court were clearly erroneous as they failed to distinguish between the easement of necessity and an easement acquired by grant. Considering the relevant clause in the Partition deed it was held that the right of way given was one of grant and not an easement of necessity. Accordingly the Second Appeal was allowed and the plaintiff's suit was dismissed. In support of the appeal learned counsel for the appellant submitted that the parameters of Section 100, CPC were not kept in view by the High Court. It was also contended that as there was no specific pleading regarding the easement by grant in the written statement, the High Court could not have decided the matter on that basis. Learned counsel for the respondent on the other hand submitted that the reading of the relevant clause leaves no manner of doubt that....
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....ecorded must be set aside where the finding has no basis in any legal evidence on record or is based on a misreading of evidence or suffers from any legal infirmity which materially prejudices the case of one of the parties. (See: Krishna Mohan Kul alias Nani Charan Kul and Another v. Pratima Maity and others [(2004) 9 SCC 468]). 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. 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....
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.... 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." 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, one drawn by the lower appellate court will not be i....
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.... 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 v. T. Ram Ditta (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 Sri Chunilal's case (supra), the Constitution Bench expressed agreement with the following view taken by a full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad.969): "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 th....
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....e of any lis. (See :Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. [(2001) 3 SCC 179]. The principles relating to Section 100 CPC, relevant for this case, may be summerised 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, ei....
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....artition deed. We should take possession of our respective shares and enjoy the same uninterruptedly for ever." 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. 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 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 b....