Gujarat High Court

Zala Kedarsinh Fatesinh vs Zala Manusinh Madhusinh on 13 February, 2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/SECOND APPEAL NO. 30 of 2024
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                     In R/SECOND APPEAL NO. 30 of 2024

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                        ZALA KEDARSINH FATESINH
                                 Versus
                     ZALA MANUSINH MADHUSINH & ORS.
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Appearance:
MR HIMANISH J JAPEE(11295) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 13/02/2024

                            ORAL JUDGMENT

1. This Second Appeal is filed under Section 100 of

the Code of Civil Procedure, 1908 (`CPC' for short) being

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aggrieved by the judgment and order passed by the learned

Additional District Judge, Sabarkantha at Himmatnagar dated

16.10.2023 in Regular Civil Appeal No.15 of 2014, by which

the learned District Court has allowed the appeal filed by

the respondent nos.1 and 2 and has quashed and set aside

the judgment and order dated 5.5.2014 passed by the learned

Principal Senior Civil Judge, Himmatnagar in Regular Civil

Suit No.76 of 2011.

2. The brief facts leading to filing of this appeal, as

stated in the memo of the appeal, are such that the

appellant filed the Regular Civil Suit No.76 of 2011 for

declaration and permanent injunction before the learned

Principal Senior Civil Judge, Himmatnagar stating that the

appellant is occupying and cultivating an agricultural land

bearing survey no.363 situated at village Deharota jointly

with other family members; that the respondent nos.1 and 2

who are original defendant nos.2 and 3 are holding the

agricultural lands bearing survey numbers 360 and 364 in

the same village; that the said respondents had never passed

through the northern boundary of survey no.363 belonging to

the appellant to reach their agricultural lands; that though

there was no way existing on the northern boundary of

survey no.363, the concerned respondents had filed Mamlatdar

Court Case No.13 of 2007 before the Mamlatdar,

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Himmatnagar interalia alleging that they were using the way

passing through the northern boundary of survey no.363 for

reaching to their agricultural lands since the days of their

forefathers; that the respondents filed suit before the

Mamlatdar stating that in July 2007, the appellant had

closed the said way by raising wire fencing and prayed to

open up the said way; the same was resisted by the

appellant stating that the respondents had never passed

through the northern boundary of the land of the appellant

and they were using one public way known as Kundala

Naliya to reach their agricultural lands; that the Mamlatdar

allowed the said suit of the respondents by holding that the

respondents were having 3' path way on the northern

boundary of survey no.363 belonging to the appellant and

directed the appellant to open up the said way; that being

aggrieved by the said order, the appellant as well as the

respondents preferred revision applications before the Deputy

Collector; that the Deputy Collector dismissed the revision

application filed by the appellant and allowed the revision

application filed by the respondents and had confirmed the

order of the Mamlatdar Court directing the appellant to open

sufficient way so as to enable the respondents to carry the

agricultural implements.

3. It is further stated that the appellant, therefore,

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filed the Regular Civil Suit, which was partly allowed by

holding that the respondents had no right of way on the

northern boundary of survey no.363 of the appellant and

restrained the respondents from passing through the northern

boundary of the survey no.363 belonging to the appellant;

that against the said judgment and order, the respondents

filed Regular Civil Appeal No.15 of 2014 before the learned

Additional District Judge, Sabarkantha at Himmatnagar,

which was allowed. It is against this, the appellant-original

plaintiff has filed this Second Appeal raising substantial

questions of law as stated in the memo of the appeal.

4. Heard learned advocate Mr.Japee for the appellant.

He has submitted that the learned lower appellate Court has

committed error in allowing the appeal by relying on two

documents which is permitted to be produced during the

appeal proceedings under the provisions of order 41 Rule 27

of CPC although the said documents were produced on the

record of the appeal and not produced before the Mamlatdar

or Deputy Collector as well as the learned trial Court; that

the said documents produced for the first time before the

learned appellate court would not inspire any confidence.

4.1 Learned advocate Mr.Japee for the appellant has

submitted that the learned lower appellate Court has erred

in relying on the orders passed by the Mamlatdar Court and

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Deputy Collector which are subject matter of challenge in the

suit before the learned trial Court, though the learned trial

court has scrutinized the said orders and has found that the

said orders were not sustainable.

4.2 Learned advocate Mr.Japee for the appellant has

further submitted that the learned lower appellate Court has

discarded the evidence of Sarpanch vide Exh.77, wherein the

Sarpanch has deposed that all the agriculturists of the village

including the respondents were passing through the public

way known as `Kundala Naliya' to reach their agricultural

fields and he has given certificate to the effect that he has

also seen the respondents passing through the said way and

the said deposition was now shaken in the cross-examination.

He submitted that there is no independent evidence on record

to support the claim of the respondents for the right of way

through the land of the appellant and the revenue records

also do not reflect the existence of any way through the land

of the appellant.

4.3 Learned advocate for the appellant has further

submitted that the conclusion reached by the learned lower

appellate court that the respondents were having right of

way being the easement of necessity is not proper as the

said conclusion is reached on the ground that the appellant

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and the respondents are cousins and the joint property is

partitioned among them; he submits that the easement of

necessity cannot be believed on the ground that joint property

has been partitioned and therefore there is no other way

available except to pass through the land of coparcener.

4.4 Learned advocate for the appellant has submitted

that the learned lower appellate court has erred in relying

on the documents vide Exh.16 and 17 produced by way of

additional evidence by believing the same to be true on the

basis of presumption under Section 90 of the Indian Evidence

Act with regard to the evidentiary value though the

respondents claim the documents to be in their custody, have

not produced the same before the Mamlatdar Court and

Deputy Collector and also before the learned trial Court. He

submitted that even if the production is permitted, the

evidentiary value of the same has to be examined by the

court below and the non-production of the said documents at

earlier stages before the two authorities and trial court

without any justifiable reason, a serious doubt can be raised

in the credibility and authenticity of the said documents and,

therefore, the said documents would not have any evidentiary

value.

4.5 Learned advocate for the appellant has further

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submitted that in rebuttal of the document Exh.17, the

appellant had produced the registered sale deed Exh.31

executed by the executors of Exh.17 document and the

learned lower appellate Court has failed to appreciate the

fact that the signature and thumb impression in both the

said documents do not match and therefore Exh.17 was a got

up document.

4.6 Learned advocate for the appellant has submitted

that the learned appellate court failed to appreciate that the

witness Bharatsinh Chhatrasinh Zala of the respondents has

admitted in the cross-examination that the owners of the

fields passed through the public way of Kundala Naliya

except the respondents. He further submitted that the

Mamlatdar Court and Deputy Collector had not given any

notice to the parties to remain present at the time of

inspection and therefore the so-called site inspection could not

have been believed by the court below.

4.7 Learned advocate for the appellant, therefore,

submitted that the learned lower appellate court has

committed gross error of law and therefore prayed to admit

this appeal and frame the substantial questions of law as

suggested in the memo of appeal, which read as under:

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"(a) Whether or not in the facts and circumstances of the case, the court below is justified in reversing the well reasoned judgment rendered by the trial court after the threadbare examination and evaluation of the evidence on record?

(b) Whether or not in the facts and circumstances of the case the court below is justified in holding that the respondents were having the right of way through the northern boundary of the land of the appellant?

(c) Whether or not in the facts and circumstances of the case the court below is justified in raising the conclusion about the right of way of the respondents on the basis of the documents produced for the first time before the court below by way of additional evidence although the said documents which were alleged to be in the custody of the respondents were at no point of time produced in the earlier proceedings before the Mamlatdar Court, the Deputy Collector and the trial court?

(d) Whether or not in the facts and circumstances of the case the court below was justified in holding that the respondents were having the easementary right of way by necessity in spite of the existence of the alternative way used by the agriculturists of the village to reach their agricultural fields?

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(e) Whether or not in the facts and circumstances of the case, the judgment and order passed by the court below is bad in law, arbitrary, erroneous, contrary to the evidence on record and also contrary to the settled principles of law?"

5. I have considered the submissions made at the bar

and also perused the material placed on record including the

impugned judgment.

6. It transpires from the impugned judgment that the

learned lower appellate court has considered the documentary

and oral evidence including the additional evidence filed

under the provisions of Order 41 Rule 27 of CPC vide

Exhs.16 and 17, the evidence produced on behalf of the

defendant nos.1,2 and 3 which are referred to in paragraphs

6,7 and 8 of the judgment, which includes deposition of

witnesses, village form no.6, 7/12 and 8A of survey nos.363,

364 and 365, the map showing the boundaries of village

Dedhrota, the orders passed by the Mamlatar and Deputy

Collector, mutation entries etc.

7. After appreciating the evidence, the learned lower

appellate Court has framed the points of determination as

under:

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"(1) Whether the Ld.trial Court has grossly erred in concluding that the defendant Nos.2 and 3 are having no right to use disputed way?

(2) Whether the Ld.trial Court has grossly erred in quashing and setting aside the order Dt.30.06.2009 passed by the Ld.Mamlatdar, Himmatnagar in Mamlatdar Court Case No.13/2007 as well as Order Dt.21.04.2009 passed by the Ld.Deputy Collector, Himmatnagar in Revision Case No.5 of 2009 and 6 of 2009?

(3) Whether the impugned judgment and decree passed by the Ld.Principal Senior Civil Judge, Himmatnagar in Regular Civil Suit No.76 of 2011 dated 05/05/2014 is arbitrary, illegal and against the settled principles of law and requires any interference in this appellate Court?

(4) What order?"

8. After framing the said points of determination and

after hearing learned advocates for the parties, the learned

lower appellate Court has come to the conclusion that there

is no dispute between the plaintiff and defendant nos.2 and 3

with regard to the ownership of the agricultural lands

inherited by them and the lis between the parties is only

with regard to the existence of the disputed way on the

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northern side of the plaintiff's survey no.363 and defendant

nos.2 and 3's right and usage of the same to their survey

nos.364 and 365 through the said disputed way. The learned

lower appellate Court further observed that according to the

plaintiff, defendant nos.2 and 3 have been using `Kudada

Naliya' to carry tools for farming on their agricultural land

bearing Survey Nos.364 and 365 and they have never uses

another side of the plaintiff's property viz. survey no.363,

thus, according to the defendant nos.2 and 3, they claim

easement of necessity, grant and prescription viz. all the

points available under the Easement Act as a wholesome

defence. Considering the meaning of a `right' as an `easement

right' which means and includes a right to use on the other

man's property either for necessity or by permission or by

prolonged use for more number of years as mentioned under

the Indian Easement Act, the learned lower appellate Court

observed that when the defendant nos.2 and 3 claim right of

easement over the land of the plaintiff, the burden of proof

is on the party, who alleges, he is enjoying the property of

another by way of easement right has to establish the

existence of such right. The learned lower appellate Court

referred to the observations made in paragraph 18 of the

judgment of the learned trial Court, wherein it is observed

that as the plaintiff has come out with a case that the

defendant nos.2 and 3 are having no right of way as alleged

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by them, it is the duty of the plaintiff to prove the same

and if plaintiff succeeds in proving the same, the onus would

shift on the shoulder of the defendant nos.2 and 3 and the

said observation made by the learned trial court is erroneous

and considering the lis between the parties, the initial

burden lies on the defendant nos.2 and 3 to prove the fact

asserted by them.

9. The learned lower appellate Court further

discussed the order passed by the Mamlatdar Court below

the suit filed by the defendants nos.2 and 3, and observed

that it is evident from the said order that the Mamlatdar

personally visited the disputed way along with Circle Officer

& Talati-cum-Mantri, Dedhrota in the presence of the plaintiff

as well as defendant nos.2 and 3 and also verified the

alternative way and made observation that the `Motu Naliyu'

is situated adjacent to the survey no.364 and 365 but the

said naliya is deep whereas the land of survey nos.364 and

365 are high and, therefore, it is not possible to use the said

way for reaching the survey nos.364 and 365 and therefore,

directed the plaintiff to remove the obstruction and keep 3

feet path way open for defendant nos.2 and 3 which is

situated on the northern side of survey no.363 for reaching

their agricultural land bearing survey no.364 and 365.

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10. It is observed that the revision applications filed

against the said order were decided by the Deputy Collector

and it emerges from the order that the Deputy Collector had

also paid visit to the agricultural lands of plaintiff and

defendant nos.2 and 3 and came to the conclusion that the 3

feet path way is not enough for the defendant nos.2 and 3

for reaching their survey nos.364 and 365 with farming tools,

and therefore, modified the said order passed by the

Mamlatdar by directing the plaintiff to keep sufficient way

open for the defendant nos.2 and 3 for going to their

agricultural lands viz. survey no.364 and 365 with farming

tools.

11. In light of the aforesaid, the learned lower

appellate court has referred to the deposition of the plaintiff-

appellant, who has in his cross-examination, admitted that he

and the defendant nos.2 and 3 are cousins, that the land

bearing survey nos.363, 364, 365, 360, 358 and 359 are

ancestral property and upon partition, the plaintiff got survey

no.363, whereas defendant nos.2 and 3 got survey no.364 and

365. After considering the situation of the respective lands,

the learned lower appellate court, after referring to the

provisions of Section 13 of the Easement Act, which deals

with the easement of Necessity, which consists of the

circumstances where the owner or occupier cannot use his

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property without exercising the right of easement over the

servient heritage; thus, absolute necessity is the test and the

convenience; when a joint property is partitioned amongst

various co-parceners and if right of easement over one share

of the property is essential for the enjoyment of the share of

the other co-parcener then latter shall be entitled to

easement. In this case, the alternative way shown by the

plaintiff being on height compared to `Kundoda Naliya', it is

but obvious that the same cannot be used by defendant nos.2

and 3 for reaching to agricultural lands viz. survey no.364

and 365 with farming tools.

12. One more aspect which is considered by the

learned lower appellate court is the production of documents

under the provisions of Order 41 Rule 27 of CPC. The

documents at Exhs.16 and 17 from the custody of the

defendant nos.2 and 3 and as both these documents are more

than thirty years old, reference was made to the provision

contained under Section 90 of the Indian Evidence Act for

genuineness of such documents, therefore, the Court presumed

that any document which is produced for investigation is

from proper custody and the signature corresponds to the

signature of the person whose custody the document was in;

the court also presumed that any handwriting in the

document is the handwriting of the person who has the

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custody of the document; that in case if the document is

attested or executed, that it was duly executed and attested

by the persons by whom it professes to be executed and

attested.

13. Section 90 of the Indian Evidence Act reads as

under:

"Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."

14. Order 41 Rule 27 of CPC reads as under:

"27. Production of additional evidence in Appellate Court.--

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been

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admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

15. It is relevant to note that though the documents

were permitted to be produced at Exhs.16 and 17, the said

order was never challenged in the present appeal till the

final disposal of the appeal.

16. Considering the impugned judgment and

observations made by the learned lower appellate court, as

mentioned hereinabove, this Court is of the opinion that the

learned lower appellate Court has given cogent, convincing,

just and proper reasons to allow the appeal, which are in

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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.

17. 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.

(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

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question of law, not formulated by it, if it is satisfied that the case involves such question."

18. It is fruitful to refer the judgment in the case of

Gurbachan Singh (Dead) Through Lrs Gurcharan Singh

(Dead) Through Lrs and Others.reported in 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 v. J. Kamala (2- Judge Bench), it was observed:--

"27. In HeroVinoth v. Seshammal [HeroVinoth v. Seshammal, (2006) 5 SCC 545], this Court referred to and relied upon Chunilal V. Mehta and Sons Ltd. [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & 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

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questions of law or substantial questions of law. The relevant paragraphs of the judgment of this Court in Hero Vinoth [Hero Vinoth v. Seshammal, (2006) 5 SCC 545] are set out hereinbelow : (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. 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 v. Ram Ditta [Guran Ditta v. 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.

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In Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & 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 v. Noony Veeraju [Rimmalapudi Subba Rao v. Noony Veeraju, 1951 SCC OnLine Mad 100 : AIR 1951 Mad 969] : (Chunilal case [Chunilal V. Mehta & Sons Ltd. v. Century Spg. & 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. 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)

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14. As already noted above, another ground of objection taken by the Appellant is the fact of the impugned judgment entering into a reappreciation 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; or (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 v. M. Arockiasamy (Dead) Through LRs. , had referred to, with approval judgment rendered in Ramathal v. 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

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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"