Case Note & Summary
The dispute pertains to a right of way claimed by the defendants (appellants) over the plaintiffs' (respondents') land bearing Gat Nos. 12 and 13. The Mamlatdar, under Section 5(2) of the Mamlatdar Courts Act, 1906, passed an order on 31.05.1996 restraining the plaintiffs from obstructing the cart way used by the defendants from the boundary of Gat Nos. 12 and 13. Aggrieved, the plaintiffs filed Regular Civil Suit No. 213 of 1996 seeking a declaration that the Mamlatdar's order was not legal, proper, or binding, and a permanent injunction restraining the defendants from using the way. The trial court dismissed the suit on 28.11.2000. The appellate court allowed the plaintiffs' appeal on 24.02.2004, reversing the trial court's findings. The defendants then filed the present second appeal. The High Court admitted the appeal on two substantial questions of law: (1) whether the appellate judge was justified in reversing the trial court's findings merely because he entertained a second opinion, and (2) whether the appellate judge was justified in relying on an alternate way created by neighbouring land owners when the way available to them was immediately appurtenant to their property while the access claimed by the defendants was not comparable. The High Court held that the appellate court had not pointed out any perversity or error in the trial court's findings and had merely substituted its own opinion, which is not permissible. The appellate court also erred in relying on an alternate way that was not comparable to the claimed right of way. Consequently, the High Court allowed the second appeal, set aside the appellate court's judgment, and restored the trial court's decree dismissing the suit.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Appellate Court's Reversal of Findings - The appellate court reversed the trial court's findings merely because it entertained a second opinion, without pointing out any perversity or error in the trial court's reasoning. Held that such reversal is not justified and the appellate court must demonstrate that the trial court's findings are perverse or based on no evidence. (Paras 3-5) B) Easement - Right of Way - Alternate Way - Comparability - The appellate court relied on an alternate way created by neighbouring land owners, but the way available to them was immediately appurtenant to their property, while the access claimed by the defendants was not comparable. Held that the appellate court erred in relying on such alternate way without considering its comparability. (Paras 3-5)
Issue of Consideration
Whether the appellate court was justified in reversing the trial court's findings merely because it entertained a second opinion, and whether the appellate court was justified in relying on an alternate way created by neighbouring land owners when the way available to them was immediately appurtenant to their property while the said access was not all comparable with that of the right of way claimed by the defendants.
Final Decision
Second appeal allowed. Judgment and order dated 24.02.2004 passed by the appellate court is set aside. The judgment and decree dated 28.11.2000 passed by the trial court dismissing the suit is restored.
Law Points
- Appellate court cannot reverse trial court findings merely by forming a second opinion
- Right of way must be appurtenant to dominant heritage
- Alternate way must be comparable to claimed right of way
