Andhra Pradesh High Court - Amravati

Tupakula Munaaf, vs Maseed Moulali. on 22 October, 2021

              HON'BLE SRI JUSTICE M.VENKATA RAMANA

               SECOND APPEAL Nos.667 & 673 of 2000

COMMON JUDGMENT:

       The 2nd plaintiff in O.S.No.45 of 1986 on the file of the Court of

the learned District Munsif, Sattenapalli is the appellant in S.A.No.667 of

2000. The respondents were the defendants.

2. The relief sought by the plaintiffs in O.S.No.45 of 1986 against

the defendants was:

"(a) for declaration that the wall C D as shown in the plaint plan exclusively belongs to the plaintiffs with a consequential mandatory injunction for restoring C D wall to its original position which the defendants demolished illegally on 28.06.1984.

(b) for a declaration that the plaintiffs have a right of easement to project the eves of their house on A B wall of the plaint plan and for a consequential mandatory injunction to restore the cement slab and drain to its original position which the defendants demolished on 28.06.1984;

(c) for a permanent injunction restraining the defendants, their men and followers and their successors in interest from in any way interfering with the C D wall of the plaint plan and concrete slab and drain;

(d) for a sum of Rs.2,000/- towards damages for demolishing in the portion of the C D wall, the concrete slab and drain;"

3. O.S.No.45 of 1986 was decreed in part in the following terms:

"1. Plaintiffs are entitled for declaration that the CD wall exclusively belongs to them and for consequential mandatory injunction for restoration of the CD wall to its original position.

2. The defendants are directed to restore CD wall to its original position within a period of two months, if the defendants fail to do so the plaintiffs are at liberty to get the said wall restored and to recovery the expenses thereof from the defendants.

3. Plaintiffs are also entitled for the relief of mandatory injunction for restoration of slab and drain to its original position.

4. The defendants are directed to restore the said cement slab and drain to its original position within a period of two months and if they fail to do so, the plaintiffs are at liberty to get it restored and recover the costs from the defendants.

MVRJ, S.A.Nos.667,673 of 2000

5. The defendants, their men and followers and successors-in-

interest are restrained by way of permanent injunction from in any way interfering with plaintiffs' CD wall, concrete slab and drain, after restoration.

6. The defendants are directed to pay Rs.2,000/- towards damages to the plaintiffs.

7. The suit in so far as the relief of declaration that plaintiffs are entitled for right of easement to project the eaves of their house on AB wall is dismissed without costs.

8. The defendants are also directed to pay costs of the suit to the plaintiffs."

4. A.S.No.117 of 1991 on the file of the Court of the learned III

Additional District Judge, Guntur filed by the defendants against the

decree and judgment of the trial Court was allowed in part setting aside

that part of the decree except awarding damages of Rs.2,000/-, by the

decree and judgment dated 21.03.1998. Hence, the second appeal No.667

of 2000 by the second plaintiff (1st plaintiff died during pendency of the

suit).

5. The appellant in S.A.No.667 of 2000 was the sole defendant in

O.S.No.156 of 1984 on the file of the Court of the learned District Munsif,

Sattenapalli. He is the appellant in S.A.No.673 of 2000. The 2nd

respondent in S.A.No.667 of 2000 was the plaintiff in O.S.No.156 of 1984.

The 1st defendant in O.S.No.45 of 1986 was not a party to O.S.No.156 of

1984.

6. O.S.No.156 of 1984 was filed for grant of permanent injunction

restraining the defendant therein from touching or meddling or resting

roof over the southern compound wall of the mosque known as 'Pedda

Mosque' at Medikonduru and from in any way interfering with peaceful MVRJ, S.A.Nos.667,673 of 2000

possession and enjoyment as well as management of this wall by the

plaintiff.

7. O.S.No.45 of 1986 was disposed of by the trial Court along with

O.S.No.156 of 1984 by the common judgment dated 30.04.1991.

O.S.No.156 of 1984 was decreed in part restraining the defendant therein

granting permanent injunction from interfering with the peaceful

possession and enjoyment of the southern wall of the Mosque to a length

of 5½ yards (marked AB in plaint plan in O.S.No.45 of 1986) and

remaining suit claim was dismissed.

8. A.S.No.118 of 1991 preferred against the decree and judgment

in O.S.No.156 of 1984 on the file of the Court of the learned III Additional

District Judge as well as the cross-objections therein were allowed leading

to dismissal of the suit in O.S.No.156 of 1984 in entirety.

9. Both A.S.No.117 of 1991 and A.S.No.118 of 1991 along with the

cross-objections therein were disposed of by the appellate Court by its

common judgment dated 27.03.1998.

10. For convenience, the parties as arrayed in O.S.No.45 of 1986

shall be referred to hereinafter.

11. Since the parties and the dispute related to part of the wall

that separates the properties of the plaintiffs in O.S.No.45 of 1986 and

Pedda Mosque represented by the plaintiff in O.S.No.156 of 1984 being

common, common trial was conducted upon consolidation of both the

suits and the evidence was let-in in O.S.No.45 of 1986 treating it as the

lead suit.

MVRJ, S.A.Nos.667,673 of 2000

12. In both the suits, plans were enclosed to the respective plaints

showing the property in dispute. It is desirable to consider the plan for the

present purpose filed along with the plaint in O.S.No.45 of 1986.

13. Pedda Mosque at Medikonduru-the 2nd defendant and the

house of the plaintiffs are adjoining properties. This Mosque is located to

the north of the house of the plaintiffs. There is a vacant site shown as

'B C C1 D G' in the plaint plan to the east of the residential (tiled) house of

the plaintiffs with doorways leading to east. This part of the plaintiffs'

property was purchased by their grandfather Sri T.Meera Saheb under a

registered sale deed dated 17.01.1929 (Ex.A1 is its registration extract)

from Sri Velaga Narasaiah and another. A part of this property shown as

'A B C C1 H A1' in the plaint plan was purchased by Sri T.Meera Saheb,

grandfather of the 2nd plaintiff under a registered sale deed dated

11.02.1930 (Ex.A2) from Sri Velaga Rathaiah and Sri Narasaiah. It is

admitted that after the purchase under these two sale deeds, T.Meera

Saheb and his successors-in-interest have been in possession and

enjoyment of this entire property.

14. Sri Maseed Mohiyuddin Saheb, Son of Khasim Saheb,

grandfather of the 1st defendant Sri Maseed Moulali, was granted a patta

for about Ac.0-04 cents of land by then Tahsildar, Sattenapalli on

04.03.1915 where he constructed a mosque and he, after him, his

successors-in-interest continued to be in possession and enjoyment of this

extent.

MVRJ, S.A.Nos.667,673 of 2000

15. The 1st plaintiff is the father of the 2nd plaintiff. There is a wall

shown as 'A B' between the 2nd defendant mosque and 'X' marked portion

of the plaintiff of about 5 ½ yards. It belonged to the said mosque.

16. The specific contention of the plaintiffs is that the residential

portion of property in their possession was subject matter of partition

between the sons of Sri T.Meera Saheb and the portion marked as 'X' in

the plaint plan was allotted to the share of the plaintiffs and the portion

marked 'Y' was allotted to the share of Sri Tupakula Mastan-elder brother

of the 1st plaintiff.

17. The plaintiffs however claimed that the wall shown as 'C D' in

the plaint plan exclusively belonged to them. They further contended that

Sri Meera Saheb while constructing the house raised another wall of his

own abutting 'A B' wall to its south that stands in continuation of 'C D'

wall. The beam of the house was resting on 'C D' wall, according to the

plaintiffs, and that there were eves projecting towards north of 'A B' wall.

18. The plaintiffs alleged that they got removed this part of the

wall shown as 'A1 C' in the plaint plan, which is running parallel to 'A B'

wall, since it was damaged due to seepage of water and laid a concrete

slab under the tiled roof of the house with a provision for drain over it, to

discharge rain water. They further alleged that for supporting this slab,

they also raised concrete pillars, which was never objected to by anyone

including the defendants.

19. The plaintiffs further alleged that the 2nd defendant filed

O.S.No.156 of 1984 seeking a permanent injunction claiming entire wall MVRJ, S.A.Nos.667,673 of 2000

'A B' and 'C D' as if belonging to it and under the guise of ex parte

injunction order in I.A.No.775 of 1984, with the help of the police got

demolished the concrete pillars as well as the slab raised by the plaintiffs

by use of force and further demolished CD wall illegally.

20. These are the circumstances set out by the plaintiffs for the

reliefs requested in the suit in O.S.No.45 of 1986 and they reiterated

similar stand in the written statement filed by the 2nd plaintiff in

O.S.No.156 of 1984.

21. The 2nd plaintiff also stated as the defendant in O.S.No.156 of

1984 in the written statement that there has been long continuing enmity

in between the family of the 1st defendant and their family with any

amount of litigation in between, which is stated to be the cause for filing

the suit against them.

22. The defendants resisted the claim in O.S.No.45 of 1986 of the

plaintiffs mainly contending that the entire case set up including that the

wall 'C D' belonged to the plaintiffs and that the beam of their house was

resting on 'C D' wall is false. They further contended that the water if any

was flowing towards front-yard through the eves to the east. When there

was an attempt by the 2nd plaintiff to renovate the house raising pillars

adjoining 'A B C D' wall and to put up a slab resting on it, it is stated that

the 1st defendant as Muthavalli of the 2nd defendant mosque instituted

O.S.No.156 of 1984 for the relief of permanent injunction against both the

plaintiffs and inspite of order of interim injunction granted therein, the 2nd

defendant proceeded with the illegal construction. Stating that this illegal MVRJ, S.A.Nos.667,673 of 2000

construction was demolished upon the orders granting police aid from the

Court in the presence of police, they further contended that the plaintiffs

have set up a false claim against them and that they are not entitled for

any damages. They further contended that by misrepresentation the

plaintiffs intended to encroach upon the vacant site adjoining on the north

of the 'ABCD' wall which belonged to the mosque.

23. Basing on the pleadings in both the suits, the following issues

were settled:

O.S.No.45 of 1986

"1. Whether the plaintiffs are entitled for declaration that the CD wall shown in the plaint plan exclusively belongs to them?

2. Whether plaintiffs are entitled for mandatory injunction for restoration of CD wall to its original position?

3. Whether the plaintiffs are entitled for declaration that they have a right of easement to project the eaves of their house on A B wall of the plaint plan?

4. Whether plaintiffs are entitled for mandatory injunction to restore the cement slab and drain to its original position?

5. Whether plaintiffs are entitled for permanent injunction restraining the defendants, their men, followers and successors-in-interest from in any way interfering with the CD wall and concrete slab and drain?

6. Whether the plaintiffs are entitled for damages of Rs.2,000/- for demolition of the portion of CD wall the concrete slab and drain?

7. To what relief?"

O.S.No.156 of 1984

"1. Whether the plaintiff is entitled to the permanent injunction as prayed for?

2. Whether the plaintiff is liable to restore the wall CD to its original position i.e.,status quo ante?

3. To what relief?"

MVRJ, S.A.Nos.667,673 of 2000

24. The parties went to trial. The 2nd plaintiff examined himself as

P.W.1. P.W.2 is the paternal uncle of P.W.1 and younger brother of the 1st

plaintiff, P.W.3 is son of vendor under Ex.A1 sale deed while P.W.4 was

the commissioner appointed in O.S.No.156 of 1984. The plaintiffs relied

on Ex.A1 to Ex.A8 as well as Ex.C1 and Ex.C2. The 1st defendant

examined himself as D.W.1 apart from two witnesses D.W.2 and D.W.3 in

support of his contention, while relying on Ex.B1 to Ex.B11.

25. Heard Sri G.Ramachandra Rao, learned counsel, for Sri

G.Pedda Babu, learned counsel for the appellant and Sri Bodduluri

Srinivasa Rao, learned counsel for the respondents.

26. Substantial questions of law are stated in the memorandum of

appeal in both these second appeals. However, Sri Ramachandra Rao,

learned counsel for the appellant, confined his submissions only in respect

of the following substantial question of law raised in both the second

appeals and represented that the claim of easementary right to rest the

roof of the house of the plaintiffs on 'AB' wall, with eves projection, for

discharge of rain water is not being pursued in these second appeals.

"1(a) When it is pleaded in the plaint in O.S.No.156 of 1984 that the compound wall was constructed after decree of Ex.B3 which is of the year 1940, whether the lower appellate Court is justified in holding that it was there even by 1938?"

27. Therefore, these two second appeals are being considered only

with reference to the above substantial question of law. In effect the

dispute is now confined to that portion of the wall in between the mosque

in question and the house of the plaintiffs marked 'CD' in the plaint plan.

MVRJ, S.A.Nos.667,673 of 2000

28. It is further to be noted that damages granted by the trial

Court of Rs.2,000/- on account of the alleged acts of defendants of

demolishing the concrete pillars, RCC slab including the wall, upheld by

the learned appellate Judge is not questioned or challenged by the

defendants.

29. Location of wall/s in between the 2nd defendant mosque and

the house of the plaintiffs is not in dispute. During the lifetime of Sri

Meera Saheb, a parallel wall was raised shown as 'A1 C' in the plaint plan

and to be in alignment with 'CD' wall. The contention of the plaintiffs is

also that 'AB' wall and 'CD' wall are not in same alignment nor contiguous.

30. The plaintiffs are relying on Ex.A1 sale deed executed in favour

of their grandfather Sri Tupakula Meera Saheb dated 17.01.1929 to

establish their claim that this 'CD' wall was part of the property purchased

thereunder and that it is their exclusive wall. In this Ex.A1 sale deed

boundaries of the property sold thereunder are given. The northern

boundary in it is described as:

     "త ర               ంకట సుబ య      ట ాట నర య ల చూర              డల హదు -గ
     19ల , ద ణమ -      ల ా ామచందయ క మ ర నర య వ            ా ా        డ హదు - గ
     10 1/4 ల పడమర -       ఐల రతయ వ        ాల ఖ   సలం హదు -గ 18/2 ల ఉతరమ
     -     ంతవరక మహమ         సూ ల -గ 8/14 య ను       ంతవరక      ా     -గ 3 3/4
     య ను       ర ి ఉతరమ      ప
                              ౖ ా గ 12 ల . ఈ      ల గ హదులల ఉన          ఉతరప
         డ ాల పడమర డ ాల నూ , ఖ       సలం     కయం"

31. This description was subject matter of good amount of

discussion in the judgment of the trial Court and to some extent

considered by the learned appellate judge. This description of northern

boundary is held by the learned appellate Judge that it did not reveal MVRJ, S.A.Nos.667,673 of 2000

existence of wall and that it is revealing a foundation as 'GODA KAALU' in

Telugu. Sri Ramachandra Rao, learned counsel for the appellant, seriously

questioned and disputed this observation stating that it is incorrect. While

Sri Bodduluri Srinivasa Rao, learned counsel for the respondents,

contended that Ex.A1 as such, did not reveal that the wall to the north of

the property purchased under it is its subject matter. The learned trial

Judge held that the wall under Ex.A1 included the wall in dispute, namely

'CD' wall and thus upheld the claim of the plaintiffs to it.

32. A consideration of the boundaries of the property purchased

under Ex.A1 clearly indicated that the wall towards north of this property,

extending in the manner depicted in the plaint plan being 'CD' is not

mentioned therein specifically. This wall as such was not the subject

matter of sale under Ex.A1. The recitals in Ex.A1 are not that this sale

included the wall on the north.

33. P.W.3 being one of the vendors of this property under Ex.A1,

who was then a minor, possibly could not have revealed about the

property sold thereunder.

34. In cross-examination of this witness on behalf of the

defendants it was elicited that what was sold under Ex.A1 was a vacant

site and that there was a wall by then. It was also elicited that there is a

wall to the north of the Mosque. He claimed that this wall belonged to

him. He also stated that there is a wall between the house of Sri Rathaiah

and the mosque and this wall belonged to the mosque. These statements

of P.W.3 cannot be against the contents of Ex.A1.

MVRJ, S.A.Nos.667,673 of 2000

35. Both the Courts below recorded that there is no proof as to

who constructed this wall.

36. In this context, it is desirable to consider the evidence placed

by the defendants at the trial. It must be borne in mind that specific

defence set up in the written statement against the plaintiffs is that there

has been a long standing enmity in between these families. The

defendants referred to litigation pending in between these parties in

O.S.No.639 of 1938, O.S.No.424 of 1949 and O.S.No.511 of 1949 on the

file of the District Munsif Court, Guntur, C.C.No.728 of 1940 and during

pendency of these suits, C.C.No.96 of 1984 was also pending.

37. O.S.No.639 of 1938 was filed by Sri Maseed Mohiyuddin Saheb,

the grandfather of the defendant, against Sri Tupakula Meera Saheb and

others. Sri Meera Saheb, as already stated is the grandfather of the 2nd

plaintiff. The dispute therein then pending on the file of the Court of the

learned Additional District Munsif, Guntur related to a passage leading to

the property claimed by the plaintiff therein. It was decreed as seen from

Ex.B3 certified copy of the judgment therein dated 28.02.1940.

38. Plan enclosed to this judgment gives the description of the

property claimed by the plaintiff therein. It was also noticed as seen from

the observations and findings recorded in Ex.B3 judgment. The grant in

favour of Sri Mohiyuddin Saheb was for the purpose of raising a mosque

in that extent of Ac.0-04 cents. Location of the mosque is depicted in this

plan followed by vacant site, school warandah and again vacant site

towards east in a contiguous fashion. This plan of Ex.B3 shows the MVRJ, S.A.Nos.667,673 of 2000

properties of grandfather of the 2nd plaintiff Sri Meera Saheb as one of the

boundaries to the south.

39. The pertinent observation in Ex.B3 judgment is location of a

compound wall around the entire site marked 'ABCD' in the plan appended

to it. A gateway in 'BC' wall leading to the Government Poramboke land is

also shown in this plan. It was also observed in this judgment that

location of the property in the manner depicted in the plan attached to it

is not disputed. These facts are considered by the learned appellate judge

in favour of the respondents and to hold that Ex.B3 judgment clearly

indicated that there was already a compound wall around this site, where

mosque and other structures stood located and that were raised by the

grandfather of the 1st defendant.

40. It is further relevant to consider the observations in Ex.B3

judgment. Referring to deposition of the grandfather of the 1st defendant

Sri Maseed Mohiyuddin Saheb, it was stated that it was his claim that the

gate in 'BC' was constructed in the year 1922 and that it has been in

existence ever since.

41. When these circumstances are considered together, it is

established that there was a compound wall around the entire site, the

mosque and other structures raised by the grandfather of the 2nd

defendant and that the construction of this compound wall should have

been by the year 1922 when the gate located at 'BC' as shown in the

plaint plan was fixed. Thus, it is clear that long prior to purchase of the

property under Ex.A1 by the grandfather of the 2nd plaintiff, there was a MVRJ, S.A.Nos.667,673 of 2000

compound wall around the mosque and other structures with a provision

for gate in the wall towards east.

42. It is further to be noted that location of this compound wall

around the entire site claimed by the grandfather of the 2nd defendant

was not disputed in O.S.No.639 of 1938. Though the contest of the

grandfather of the 2nd plaintiff in that suit in the written statement

included the title claimed in respect of this wall by the grandfather of the

1st defendant as seen from Ex.B3 judgment he did not let-in any evidence

nor participate in the trial.

43. This fact was considered by the learned appellate Judge and

the evidence on record in this context has been rightly appreciated. The

learned appellate Judge also considered observations of the commissioner

in this respect and ultimately upon analysis of evidence, in para-27

inferences were drawn basing on the material. One of the inferences so

drawn is that Ex.B3 and its plan gave raise to an inference that the

compound wall belonged to the mosque. It is correct.

44. The observations of the learned trial Judge in this context are

more presumptive and evidence on record in this regard was not properly

appreciated. Therefore, the findings so recorded by the learned trial Judge

that this wall belonged to the plaintiffs, was rightly set aside by the

learned appellate Judge.

45. P.W.3-the vendor under Ex.A1 also admitted location of

Mohammadian school, depicted in the plan enclosed to Ex.B3. It is also

referred to as the northern boundary of the property covered by Ex.A1.

MVRJ, S.A.Nos.667,673 of 2000

When such was the situation and location of the property where the

mosque and other structures were located then viz., by the year 1929,

inference necessarily to be deduced is that a compound wall was

constructed around this entire property by the person who raised the

mosque and other structures therein. It was none other than the

grandfather of the 2nd defendant. Though there is no direct evidence in

this context, basing on the material it is the irresistible inference.

46. The observations of the learned trial Judge that if there was

already a wall relating to the mosque on the north, it would have found

mentioned in Ex.A1, is without any basis. Whatever boundaries or recitals

in relation thereto found in Ex.A1, when the predecessor-in-title of the 2nd

defendant, namely his grandfather was not a party to it, neither he nor his

successors-in-interest could be bound by them. This situation was set

right by the learned appellate Judge upon re-appraisal of the material

while considering the effect of Ex.B3 judgment and the plan enclosed to it

upholding the contention of the defendants that the wall to the north of

the property claimed by the plaintiffs through their grandfather under

Ex.A1 belonged to the mosque.

47. However, Sri Ramachandra Rao, learned counsel for the

appellant, strenuously contended relying on the averment in the plaint in

O.S.No.156 of 1984 that after disposal of O.S.No.639 of 1938 by the

learned Additional District Munsif, Guntur on 28.04.1940, a stony

compound wall was constructed upto 7 feet height covering the mosque

building and its vacant site. Thus, these averments in the plaint in

O.S.No.156 of 1984, according to the learned counsel for the appellant, MVRJ, S.A.Nos.667,673 of 2000

clearly proved and established that there was a compound wall put up

with stones of 7 feet height later in the year 1940 and having regard to

the contents in Ex.A1 describing northern boundary, the inference drawn

by the learned trial Judge holding this 'CD' wall being of the property

purchased thereunder and that it belonged to the plaintiffs, is correct.

48. The material on record as discussed supra particularly Ex.B3

the judgment in O.S.No.638 of 1938 and manner of situation and location

of this mosque considered therein, impels to hold that what is stated in

the plaint in O.S.No.156 of 1984 could not be correct. This wall was not

sold under Ex.A1. Though it was stated as a mistake in the course of

arguments before the learned trial Judge, it was not accepted. The

learned appellate Judge considered this fact situation that there was

'a rocky compound wall to this mosque with two gates'.

49. Sri Ramachandra Rao, learned counsel for the appellant,

contended that in the presence of such pleading in O.S.No.156 of 1984

the findings recorded by the learned appellate Judge is contrary to

material on record and thus it amounted to substantial question of law

which this Court has to consider. In support of this contention, the learned

counsel for the appellant relied on Biraji @ Briraji & another vs. Surya

Pratap and others1. One of the observations in this ruling of the Hon'ble

Supreme Court is that in the absence of pleading no amount of evidence

will help the party.

.2020(10) SCC729 MVRJ, S.A.Nos.667,673 of 2000

50. This contention of the learned counsel for the appellant is

difficult to accept, in as much as the finding so recorded by the learned

appellate Judge is based on evidence and material. It is not an outcome of

surmises or which is not based on evidence on record. The documentary

proof so laid by the defendants related to proceedings of a Court which

cannot be brushed aside. The findings recorded by the learned trial Judge,

as if there was no issue relating to title, particularly in respect of the wall

surrounding this property nor any specific finding was recorded thereon,

are all immaterial. The learned trial Judge overlooked the fact that the

defence raised by the grandfather of the plaintiffs in the suit is not

supported by evidence. It is not disputed that the judgment in Ex.B3

became final. Therefore, the finding so recorded by the learned trial Judge

in this context that wall existed long prior to the year 1940 is not correct.

51. Therefore, when the substantial question of law raised on

behalf of the appellant is only in this regard, when there is justification for

the findings returned by the learned appellate Judge, it cannot be stated

that it amounted to such question of law which requires consideration and

determination in this second appeal.

52. Sri Srinivasa Rao Bodduluri, learned counsel for the

respondents, referring to the material and evidence adverted to by the

learned appellate judge vis-a-vis the findings recorded by the learned trial

Judge, strenuously contended that in this second appeal, considering such

question in terms of Section 100 CPC did not arise. The learned counsel

for the respondents in this context relied on Hero Vinod(Minor) vs. MVRJ, S.A.Nos.667,673 of 2000

Seshammal2 in support of his contention, where in para-20, it is

observed thus:

"20.........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....."

53. Further observations in Para-16 of this ruling relied on by the

learned counsel for the respondents are as follows:

"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."

54. Further reliance is placed by Sri Srinivasa Rao Bodduluri,

learned counsel for the respondents, in the same context on Kondiba

Dagadu Kadam vs. Savitribai Sopan Gujar and others3. Reliance is

also placed for the respondents by their learned counsel in Muslim

Jamath of Eachampatti vs. Rahamtullah Shuttari and others 4.

55. Learned appellate Judge on re-appreciation and reappraisal of

the same had drawn correct conclusions, interfering with rather improper

and presumptive conclusions drawn by the learned trial Judge. This Court

is satisfied that there are no such substantial questions of law much less

the one pointed out for the appellant in these second appeals for

. (2006) 5 545

. (1999)3 SCC 722