Case Note & Summary
The appellant, Sri B.V. Srikumar, was the unsuccessful plaintiff in a suit for declaration of right of way and permanent injunction against the Chief Conservator of Forest and the Research Range Forest Officer. He owned land bearing No.43, measuring 3 acres 22 guntas, at Vaderahalli, Anekal Taluk. He claimed that a small strip of land (300 ft x 7 ft) on the western boundary of his land, belonging to the defendants, was used as a passage from time immemorial with permission obtained through a letter dated 04.04.1991. He alleged that the second defendant's official suddenly started fencing the passage, prompting him to file O.S.No.329/1998 before the Additional Civil Judge (Sr.Dn.) and JMFC, Anekal. The trial court dismissed the suit on 02.04.2007, and the first appellate court (III Additional District and Sessions Judge, Bengaluru Rural District, sitting at Anekal) dismissed R.A.No.38/2007 on 03.10.2015, confirming the trial court's judgment. The appellant then filed the present second appeal under Section 100 CPC. The High Court, after hearing the appellant's counsel, found that the courts below had concurrently held that the plaintiff failed to prove his right of way. The alleged passage was only 12 x 12 feet, and the plaintiff had an alternative approach road. The High Court concluded that no substantial question of law arose for consideration, as the concurrent findings of fact were based on proper appreciation of evidence and could not be interfered with in a second appeal. Accordingly, the appeal was dismissed.
Headnote
A) Civil Procedure - Second Appeal - Section 100 CPC - Substantial Question of Law - The High Court held that no substantial question of law arises for consideration as the courts below concurrently found that the plaintiff failed to prove his right of way over the suit schedule property. The findings of fact are based on proper appreciation of evidence and cannot be interfered with in a second appeal. (Paras 1-5) B) Easement - Right of Way - Easement by Necessity and Prescription - The plaintiff claimed a right of way over a strip of forest land measuring 300 ft x 7 ft, alleging use from time immemorial with permission. The courts below held that the plaintiff did not prove the existence of an easement by necessity or prescription, as the alleged passage was only 12 x 12 feet and the plaintiff had an alternative approach road. (Paras 2-4) C) Evidence - Burden of Proof - The plaintiff failed to discharge the burden of proving his right of way. The concurrent findings of fact are based on evidence and cannot be re-appreciated in a second appeal under Section 100 CPC. (Paras 3-5)
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 plaintiff's claim of right of way over the defendants' land.
Final Decision
The second appeal is dismissed. No order as to costs.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- easement by necessity
- easement by prescription
- burden of proof
