JUDGMENT N.K. Mehrotra, J.
1. This is second appeal under Section 100 of the C.P.C. against the judgment and decree dated 28.4.1980, passed by Civil Judge, Gonda in Civil Appeal No. 62 of 1979 filed against the judgment and decree dated 29.3.1979 in Regular Suit No. 103 of 1972 decided by Ist Additional Munsif, Gonda.
2. I have heard Shri U.S. Sahai, advocate for the appellants and Shri R.C. Srivastava for the respondents.
3. It appears from the pleadings that the plaintiff-respondents filed a suit with respect to the abadi land alleging it to be their sehan land appurtenant to their house and also alleging that the construction through Maraha and Charani existed over the land in suit belong to them. It was also alleged that the disputed land was being used for tethering cattle and as passage. It was also alleged that the defendants-appellants have constructed varanda adjacent to their house and has dispossessed the plaintiff from its use and enjoyment.
4. The defendants-appellants contested the suit by contending that the main door of the house of the plaintiff house is towards east and a large piece of land having an area, of two bighas is in the east of this house and over this land the charri, charni and maraha belonging to the plaintiff exist. It is also alleged by the defendants-appellants that just before filing of the suit, the plaintiffs opened khidki towards north and maraha adjacent to their house was constructed and on being obstructed by the defendants, a panchayat took place in the village and the plaintiffs promised to remove maraha and to close khidki but instead of doing so, they filed suit. It is also alleged by the defendants that their house is very old and alleged varanda was in existence for long from the time of their ancestors. Since this varanda was fallen down, so it was reconstructed. It was also alleged that the pegs, ghoor trees, charri and charani existing over the land in dispute all belong to the defendants and the land in dispute is a sehan land of the defendants and is also appurtenant to their houses and the defendants are its owners. The defendants also asserted in the alternative their possessory title and right of ownership under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act (U. P. Act No. 1 of 1951). The defendants denied the alleged user of the land in dispute by the plaintiffs by saying that in between the house of the parties there intervenes a road which is 15 ft. wide. The defendants also pleaded that the house of the plaintiffs has been constructed five or six years before the filing of the suit and it never existed at the time of vesting and therefore, no question of sehan land or land appurtenant to their house can arise.
5. The learned Munsif framed the following issues :
(i) Whether the disputed land in appurtenant to the house of the plaintiff, if so, its effect?
(ii) Whether the plaintiffs are in possession over the disputed land? If not, whether the suit of the plaintiff is barred by time?
(iii) Whether the land in suit is under-valued and court fee paid is insufficient?
(iv) Whether the defendants are in possession over the disputed land. If so, whether the suit of the plaintiff is not maintainable?
(v) To what relief the plaintiffs are entitled?
(vi) Whether the disputed land has been settled as the plaintiffs have stated in para 5 of the plaint?
(vii) Whether the disputed varanda was constructed during pendency of the suit?
(viii) Whether the plaintiffs have the right of passage over the disputed land?
(ix) Whether the defendants have acquired the right of possession over the disputed land?
(x) Whether the defendants are the owners of the disputed land under Section 9 of the U.P.Z.A. and L.R. Act?
6. Issues No. i, ii and vi were decided jointly by the trial court. The learned Munsif recorded the finding on these three issues that the disputed land is appurtenant to the house of the plaintiff and they are in possession over it. Issues No. iv, ix and x were decided against the defendants by holding that the disputed varanda has been constructed during the pendency of the suit. On issue No. viii, the learned Munsif held that the plaintiffs had no other right of passage except the passage over the disputed land in the north of their house and therefore, the plaintiffs have right of way over the disputed land.
7. The defendants-appellants preferred first appeal and the learned civil Judge has dismissed the first appeal filed by the defendants- appellants. The learned civil Judge has formulated two issues for determination for deciding the first appeal:
"(1) Whether the learned Munsif has committed error in disbelieving the facts alleged in the written statement and the evidence adduced by the defendants?
(2) Whether the learned Munsif has committed error in appreciating the oral and documentary evidence adduced by the defendants?
8. The learned Civil Judge in appeal recorded the findings that house of the plaintiffs as it exists, is an old house and they have opened the eastern door of their house nearby in the year 1972. It has also been held by the learned Civil Judge that the plaintiffs have proved that there is neem tree and ghoor etc. and the passage of the plaintiffs over the disputed land. According to the finding of the learned Civil Judge, sehan of the plaintiff pointed out by the defendants has come into existence after the consolidation proceedings. The learned Civil Judge has confirmed the finding of the learned Munsif that there is a sehan door of the plaintiffs towards the disputed land and there are ghoor and trees etc. belonging to the plaintiffs over the disputed land and they have their passage through the disputed land which has been closed by the defendants during the pendency of the suit.
9. It is against these aforesaid two judgments, the defendants- appellants have preferred this second appeal under Section 100 of the C.P.C. which provides that 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.
10. Now the question is what is substantial question of law? In Sir Chhunilal v. Mehta and sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., , a Constitutional Bench of the Supreme Court provided the meaning of phrase 'substantial question of law' in the following terms :
"The proper test for determining whether a question of law raised in the case is substantial would 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."
11. The instant second appeal was admitted to decide the substantial question of law No. 1 to 5 as stated in the memo of appeal and those substantial questions of law raised in the memo of appeal are as follows :
(1) Whether the land in suit not being appurtenant to the plaintiffs' house can be held to be sehan land of the plaintiffs under Section 9 of the U. P. Act No. 1 of 1951 when on the contrary the land in suit is appurtenant to the defendants' house and between the land in dispute and the plaintiffs' house a road intervenes?
(2) Whether after a finding having been recorded by the lower appellate court that the plaintiffs have two bighas of land in front of their house and the main door of the plaintiffs' house lies towards east and the land towards east of the plaintiffs house is the sehan land of the plaintiffs, the land in dispute lying towards north of the plaintiffs' house can be held to be sehan land of the plaintiffs?
(3) Whether a person after the date of vesting can have two sehan land with respect to one house and the lower appellate court in not considering this aspect the finding recorded by the lower court stands vitiated?
(4) Whether a statement under Order X, Rule 2, C.P.C. being part of pleadings whereby the plaintiffs clearly admitted that the land in dispute is the property of Gaon Sabha the courts below in not considering this statement and in holding the land in dispute to be sehan land the finding so recorded stands vitiated?
(5) Whether no finding having been recorded by the courts below that a portion of the land in suit has been used as way by the plaintiffs beyond the prescribed time, the findings recorded by the courts below that the plaintiffs have right of way stands vitiated?"
12. All the aforesaid questions raised in the memo of appeal are not substantial questions of law as the phrase has been interpreted by the Supreme Court in the decisions cited above but at the same time, it can be seen in second appeal whether findings on material issue is perverse or according to evidence on record. I find that the case of the defendants- appellants is that the land in suit is not appurtenant to the plaintiffs' house and it cannot be held to be a sehan land of the plaintiffs under Section 9 of the U.P.Z.A. and L.R. Act because a road intervenes between the house of the plaintiffs and the disputed land. As is apparent from the map prepared by the Commissioner, it is a fact that there is some road between the north door of the house of the plaintiffs and the disputed land over which there is maraha of the plaintiffs. In spite of this spot situation, both the courts below have recorded the finding that the disputed land is appurtenant to the house of the plaintiff. Therefore, the question is whether the finding about the disputed land being appurtenant to the house of the plaintiff is in accordance with law. In this respect, I would like to refer a decision of this Court in Ram Sukh v. Gayadeen, 1994 (12) LCD 733, in which it was held that for deciding the question whether a person has acquired rights in certain property in the abadi as land appurtenant, what is material to be considered is as to whether the parties or person claiming the rights, had been holding the building or property of the nature mentioned in Section 9 of U.P.Z.A. and L.R. Act, had been making use of the land appurtenant to the same as land appurtenant or sehan darwaza for the beneficial enjoyment of that building. It was also held in this case that a riyaya may have the sehan darwaza on all the sides of the house. It is the user of the land on the date of vesting and prior thereto which is material. The passing of a galiyara or rasta or drain in between the building or house and the land over which in relation to a building or house, the rights of appurtenance is claimed, it does not adversely affect the sehan darwaza right or rights involving right of a person to a land as land appurtenant. In view of this settled legal position, there is no error in the finding recorded by two courts below that the disputed land is appurtenant to the house of the plaintiff.
13. The defendants-appellants have further raised a plea that the plaintiffs have two bighas of land in front of their house and the main door of the plaintiffs' house lies towards east and the land towards east of the plaintiffs' house is the sehan land of the plaintiffs and therefore, the disputed land lying towards the north of the house of the plaintiff cannot be sehan land of the house of plaintiffs. Both the courts below have recorded a concurrent finding on this issue by holding that two bighas land in the east was allotted to plaintiffs during the consolidation operation in the year 1972 and it was not an abadi land. Therefore, even if there is two bighas land in the chak allotted to the plaintiffs, the findings recorded by the two courts below cannot be interfered in this appeal.
14. The next argument of the learned counsel for the defendants- appellants is that no one can have the two sehan land with respect to one house after the date of vesting. This contention has also no force because the disputed land is being used by plaintiffs for the long time before the abolition of Zamindari and the land in the east of the house of the plaintiffs has been allotted to them during consolidation operation as per the findings of the two courts below which being a finding of fact cannot be disturbed in this second appeal.
15. Learned counsel for the defendants-appellants has also referred the statement of the plaintiffs recorded under Order X, Rule 2, C.P.C. in which the plaintiff has admitted that the land in dispute, is the property of Gaon Sabha. It is argued that the two courts below has ignored this statement and therefore, the findings are perverse. I am of the view that this statement is of no help to the defendants-appellants because both the courts below have recorded the findings that the plaintiffs have the easementary right of passage over the disputed land. A specific issue was framed for this purpose and both the Courts have recorded the categorical finding about the easementary right of passage of the plaintiff over the disputed land. Right of easement always exists over the land of others and not of their own and easement is a right which the owner or occupier of certain land possess for the beneficial enjoyment of that land on the land of certain other person and'not over the land of his own. Since the finding of the two courts below with regard to the right of passage of the plaintiff over the disputed land is the finding of fact, this finding also cannot be disturbed merely because of omitting certain evidence from consideration.
16. In V. Ramachandra Ayyer and Anr. v. Ramlingam Chettiar and Anr., . it has been held by the Supreme Court that High Court cannot interfere with the conclusions of fact recorded by the lower appellate court however, erroneous or defective in the appreciation of evidence adduced by the parties.
17. In view of the discussions above, I hold that in this appeal, no substantial question of law arises and the contentions raised by the defendants-appellants with regard to different findings as discussed above, have no force. The two courts below have recorded the findings of fact that the disputed land is appurtenant to the house of the plaintiff and they have the easementary right of passage over the disputed land. Therefore, this appeal is dismissed with cost to the respondents.