Heard learned counsel for the parties and gone through the records.
This second appeal has been preferred by the appellant against the judgment and decree dated 03.01.2010, in original suit no.104 of 2005, by which the plaintiff's suit for permanent, mandatory and prohibitory injunction was decreed, which has been confirmed by the learned First Appellate Court in regular civil appeal no.11 of 2010, vide judgment and order dated 28.08.2012.
This is a suit regarding the disputed premises which is surrounded from all the sides by the property of the plaintiff, in which the defendants were granted license which has since been revoked.
In view of Section 54 of Easement Act, the licence can be expressed or implied. The provision is reproduced below:-
"Grant may be express or implied.- The grant of a license may be express or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license."
Not only this, Section 61 of Easement Act provides as under:-
"Revocation express or implied.- The revocation of a license may be express or implied."
In view of these provisions, grant and revocation of license has been established and the courts below have rightly discussed the evidence and reached to the correct conclusions. No substantial point of law or fact is involved in this appeal.
Learned counsel for the appellant relied upon the law laid down by Punjab and Haryana High Court in the case of Surjit Singh and others v. Gurmit Singh and others, passed in RSA No.3166 of 2007 (O&M) 1 and the law laid down by this Court in Vishwanath Singh v. Jogendra Singh, 2005 (23) LCD 466. Both these judgments have no relevance to the controversy in the suit.
The Hon'ble Apex Court in the case of G.Amalorpavam & ors. v. R.C. Diocese of Madurai & ors., 2006 (3) SCC 224 has held as under:-
"Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination."
Admittedly, ancestors of the plaintiff were jamindars of the area and not only the disputed premises but the entire surrounding areas are still in the ownership and possession of the plaintiff which is evident from the site plan prepared by the Commissioner, which is mentioned in the decree sheet.
A detailed hearing and perusal of the judgment and orders of both the Courts below made it abundantly clear that no substantial question of law is involved in this appeal. Even appreciation of evidence by the two Courts below has not been assailed before this Court.
In Sir Chunnilal V. Mehta & & Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd., reported in A.I.R. 1962 S.C., 1314, the Hon'ble Apex Court for the purposes of determining the issue has held :
"The proper test for determining whether a question of law raises 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."
Further in Rajeshwari Vs. Puran Indoria, reported in (2005) 7 S.C.C., 60, it was held :
"The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine-quanon for the exercise of jurisdiction under the provisions of Section 100 C.P.C. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence."
In Smt. Bibhabati Devi Vs. Ramendra Narayan Roy & amp; Ors., reported in A.I.R. 1947 PC 19, it has been held :
"the Privy Council has provided the guidelines as in what cases the second appeal can be entertained, explaining the provisions existing prior to the amendment of 1976, observing .... that miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happen not in the proper sense of the word a judicial procedure at all. That the violation of some principles of law or procedure must be such erroneous proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the Courts could arrive at their finding, is such a question of law."
In Vijay Kumar Talwar Vs. Commissioner of Income Tax, New Delhi, reported in (2011) 1 S.C.C. 673, it has been held :
"a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. 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 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. It will, therefore, depend on the facts and circumstances of each case, whether a question of law is a substantial one 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."."
In the case of Union of India Vs. Ibrahim & Another in Civil Appeal No.1374 of 2008, decided on July 17, 2012, the Hon'ble Apex Court has held :
"There may be exception circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."
In view of the law as discussed above, the second appeal is dismissed.
Order Date :- 15.10.2012 Ram.