This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 23.06.2005 passed in A.S.No.109 of 1998 by the Additional District Judge, Fast Track Court No.II at Kancheepuram, confirming the judgment and decree of the trial Court, namely, the Principal District Munsif at Kancheepuram in O.S.No.679 of 1995. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court.
2. Heard the learned counsel for the first respondent.
3. The second appellant/plaintiff filed the suit O.S.No.679 of 1995 seeking the following reliefs:
"(i) To declare the plaintiffs right of access to the suit 'A' schedule premises through the suit 'B' schedule road margin poromboke land from the road in Survey No.1760 and vice-versa and as consequence grant permanent injunction restraining the 1st defendant and his men and agent from in any way interfering with the plaintiffs right to access to the 'A' schedule property through the 'B' schedule property to reach the said road in Survey No.1760.
(ii) To grant permanent injunction restraining the defendants 1 and 2 in any way disconnecting the plaintiffs service connection No.94 situated in the suit 'A' schedule mentioned property. ..."
The defendants entered appearance and filed written statement resisting the suit.
4. The trial Court framed relevant issues. During trial, the plaintiff examined himself as P.W.1; the third defendant, D.Mani was examined as P.W.2 and Exs.A1 to A14 were marked. On the side of the defendants, one Purushothaman was examined himself as D.W.1 and Ex.D1 was marked.
5. Ultimately, the trial Court dismissed the suit, as against which the plaintiff filed the appeal, for nothing but to be dismissed by the First Appellate Court, confirming the judgment and decree of the trial Court.
6. Animadverting upon such dismissal of the claim of the plaintiff by both the Courts below, this Second Appeal has been focussed on various grounds and also suggesting the following proposed substantial questions of law:
"1. Whether the rejection of relief and declaration of injunction prayed by the plaintiff on the passage leading to the Municipal bus stand to have access to his property sustainable in law?
2. When the relief of the plaintiff in the suit is covered under Sec.28 of Easement Acts, whether the Courts below were right in dismissing the suit without granting the same?
3. Whether the Courts below were right in rejecting the relief of declaration and injunction regarding the right of access to the property of the plaintiff, on the grounds that the plaintiff cannot seek any relief on other man's land is correct?
4. Whether the Courts below were right in dismissing the suit of the Appellant for a declaration and permanent injunction, without examining the issue as one of easement of necessity?
5. Whether the Courts below were right in dismissing the suit for relief relating to the access to his property, when the plaintiff had no other access to the property which fact remain confirmed from the report of the Advocate Commissioner?"
7. Despite printing the name, the appellant has not appeared.
8. A bare perusal of and poring over the relevant typed set of papers including the copies of the judgments of both the Courts below would display and demonstrate that the plaintiff filed the suit on the main ground that from D3 and D4 he got the 'A' scheduled property for lease, so as to run his business; While so, he allegedly was using the 'B' schedule property as a passage for having ingress and egress to the 'A' schedule property. Whereas, the Municipality/D1 filed the written statement contending that the 'B' schedule property is part of the bus stand area and the plaintiff can have no right of passage for having ingress and egress to the 'A' schedule property.
9. Both the Courts below adverting to the evidence on record gave a factual finding to the effect that absolutely there is no shred or shard, iota or molecular, pint-sized or scintilla of evidence to evince and evidence that 'B' schedule property was a passage as claimed by the plaintiff. In fact, both the Courts below in their judgments, referred to the very admission made by the plaintiff himself that he was having no record to establish that 'B' schedule property was a passage. The First Appellate Court correctly and appositely observed that simply because there is a road margin, it cannot be presumed that it could be used as a passage by any citizen, here in this case, the plaintiff. The relevant portion of the deposition of P.W.1 is found extracted in the judgment of the First Appellate Court and that would demonstrate that adjacent to the 'A' schedule property, the Municipality's property commences; the landlord of the plaintiff in the lease deed never stated that 'B' schedule property could be used as pathway and there is no reference to it also. If at all as claimed by the plaintiff, for the 'A' schedule property, if 'B' schedule property served as a passage, then there should have been some reference in the revenue records, but there is no such indication.
10. Even though D3 in support of the plaintiff at one point of time might say the 'B' schedule property was only a passage for the 'A' schedule property, quite antithetical to such stand, P.W.1 himself admitted that there is one other way available for having ingress and engress to the 'A' schedule property and as such, taking into consideration all the relevant facts, both the Courts below gave a factual finding that 'B' schedule is not a passage. Accordingly they rendered their judgments.
11. The proposed substantial question of law Nos.1 and 2 are vague. In view of the findings of both the Courts below, such proposed question of law Nos.1 and 2 does not arise.
12. The proposed substantial question of law No.3 is on the assumption as though both the Courts below rendered their judgments on the ground that the plaintiff cannot seek other man's land. Both the Courts below have not rendered their judgment on such fictitious proposition of law, but on the other hand, after analysing the evidence on record, gave a clear verdict to the effect that 'B' schedule property was never permitted to be used as a passage and it is part of the bus stand concerned. Hence, the proposed substantial question of law No.3 does not arise.
13. The proposed substantial question of law Nos.4 and 5 are general in nature, which are not at all dignified to be equated to the level of substantial question of law as suggested by the Hon'ble Apex Court in the following judgments:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL, certain excerpts from its would run thus:-
"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. . . . . . . ."
18. . . . . . It has to be kept in mind that the right of appeal is neither a natural nor an inherenth right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. . . . . .
21. . . . . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by sufficing 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 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. In Sir Chunilal case 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(Sir Chunilal case, SCR p.557) "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 fact of the case it would not be a substantial question of law."
This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:(Sir Chunilal case, SCR pp.557-58) "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or call for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law his a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.(See Santosh Hazari v. Purushottam Tiwari).
24. . . .
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (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. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER, an excerpt from it would run thus-
9. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this Section in several cases, the findings of fact of the first appellate Court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this Section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal v. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962 SC 1314) held that:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
As such, I could see no merit in this Second Appeal, accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.