Case Note & Summary
The case involves a second appeal filed by the appellants (original plaintiffs) against the judgment and decree of the first appellate court which confirmed the trial court's dismissal of their suit for declaration and injunction regarding a right of way. The appellants claimed a right of way over the respondents' property for access to their own property. The trial court, after considering the evidence, held that the appellants failed to prove the existence of any such right. The first appellate court concurred with this finding. In the second appeal under Section 100 of the Code of Civil Procedure, 1908, the appellants argued that the courts below had misappreciated the evidence and that substantial questions of law arose. The High Court, however, found that the findings of fact were concurrent and based on proper appreciation of evidence. The court noted that no substantial question of law was involved and that the appeal was essentially an attempt to re-agitate questions of fact. Consequently, the High Court dismissed the second appeal, upholding the concurrent findings of the courts below.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court reiterated that a second appeal lies only on substantial questions of law and not on re-appreciation of evidence. Concurrent findings of fact based on proper appreciation of evidence cannot be interfered with unless perverse or based on no evidence. (Paras 1-10) B) Easement - Right of Way - Burden of Proof - The plaintiff claiming a right of way must prove the existence of such right. In this case, the trial court and first appellate court concurrently found that the appellants failed to prove their right of way over the suit property. The High Court upheld these findings as they were based on evidence. (Paras 5-8) C) Evidence - Appreciation of Evidence - Concurrent Findings - The courts below had examined the oral and documentary evidence, including the title deeds and maps, and concluded that the appellants did not establish any easementary right. The High Court found no perversity in such appreciation. (Paras 6-9)
Issue of Consideration
Whether the second appeal under Section 100 of the Code of Civil Procedure, 1908 raises any substantial question of law warranting interference with the concurrent findings of fact recorded by the courts below regarding the existence of a right of way.
Final Decision
Second Appeal No. 112 of 2014 is dismissed. The judgment and decree of the first appellate court confirming the trial court's dismissal of the suit are upheld. No order as to costs.
Law Points
- Second appeal under Section 100 CPC limited to substantial questions of law
- concurrent findings of fact not interfered with
- right of way easementary rights
- burden of proof on plaintiff
- appreciation of evidence by trial court and first appellate court
