Dismissed

Prabhu Das v. Santosh Kumar and Others

Chhattisgarh HC7 Feb 2014SA/464/2003

Case brief

AI extract

What is this about?

In this second appeal under Section 100 CPC, the High Court dismissed the appeal at the admission stage. The court held that the findings of the courts below were based on evidence and the appellant failed to establish an easementary right, so no substantial question of law arose.

What did the court decide?

The second appeal was dismissed at the admission stage; no order as to costs.

Prabhu Das Vs Santosh Kumar and Others — Civil Procedure and Limitation | Chhattisgarh HC (2014)

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•s@niT '^tiii^tltj TS SSS HI&H C0u±i3' 03? TODXGA2UAB Aa* BII-AaFCTHs O.tt. y <3..A.EO. l-<^it __W 2003

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Seeond A,ppeal under Section 100,

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Court o£ Civil .Crooedure 1908.

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Appelleu-t ; ^-••'2'laint^±£S:

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rrabhuda.s S/o Sudaii.S&tiu, aged about 74 yea.rs, Cultiv&toz','Soat ll/o Villsge Maffea, Ma'fcTsa, P.E.H'o.55, Eahasil Bemetaz'a, : Bistrlc-t-Dure* (C.Q-.).

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Ts.

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Sespon.den'fcs; 1 . Saa'tosh 3/o Sakfaa Kem Yadav, ' Defendants ; S/oaged Villsgeabout 54Ma-fctea,years,r.H.]'Io.55,Gul'tiva-tori/ 1'abasil Bemeta-ra, Bist .Buz-g.CS-.

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B.eeralal S/o Snfrha Bam TadaT, aged abou-t 31 years, Cultivator K/o Villaga Matka, P.E.Ho.35, Zahasil Beue-tara, Dist .Durg.CG-.^ ^'5. S-tate of (G.Q-. ), / -ttaB.rougIi Dis'trxo'fc CQlleotor, Durg,

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^^> Claim in appeal for dedsz-ation of easementary z-ights valued at Hs.600/-.

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HIGH COURT OF CHHATTISGARH

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Single Bench: Hon'ble Mr^ Justice Sanjay K. Agrawal

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Second Appeal N6.464 of 2003

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APPE&IANT Prabhudas, S/o Sudau Sahu Plaintiff

Vs.

RESPONDENTS

Santosh & others

Defendants

SECOND APPEAL ONDER SECTION 100 OF THE CODEOF CIVIL PROCEDURE, 1908 Present: Shri Sanjay S. Agrawal, counsel for the appeltant, ; • Shri Vimlesh Bajpai; counsel for tjhe. responjdenfs N6. ,]j. &: 2. ; . Shri . "Akhil :,]Agrawal, PL for tfhe State/.respdndent^iNo.. -3 . ORAL; ORDER Passed on 07.02.2014 1) Heard on admission. For sake of convenience, fehe parties would be referred hereinafter as per tlasir status before the trial Court. (2) This is plaintiff's Second Appeal filed urfder Section 100 of the Code of Civil Proeedure (^for shDrt 'the : CPC') against the, judgment and ' decree , d|ateci 21.4.12003 passed by , Addittonal District Jyldjge^, Bemetara, District Durg in Civil Appeal No. 3-ft/2!Q103, f.':...1'. •: affirming the judgment :and decreedated 27:. 11.1200i2 passed by Civil Judge,: ,C~L.ass 11, . Bemetara in.Qivi;!: i SuitjNo. 30-A/2002, :disml|sstng :the plaintiff's suijt;. L

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"iSf' ,; i-3ii3i9GS'1

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(3 Facts necessary for disposal of this appeal are that: plaintiff ' filed a .suit for declaration' of easmentary right over the defendants' land being Khasra No.336/2 (New No.869) and.Khasra No.340/3( Wew No.868). (4) The trial Court, by its judgment and decree, dismissed the plaintiff's suit, finding inter aJ-:ia that the plaintiff has failed to establish the easmentary right over the defehdant's land. (5) Plaintiff preferred first appeal.; thereagainst. The first appellate court, after re-appreciating the entire evidence adduced in the case, affirmed ,the judgment and decree passed by the trial court,, leadiing to filing of this Second Appeal under Section 100 of the Code of Civil Procedure.

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(6) Mr. Sanjay S. Agrawal, learned counsel appearing for the appellant/plaintiff would submit that findings recorded by both the courts below that the plaintiff has failed to establish his easementary right over the defendants' land is perverse and that raises a substantial question of law for determinata-on .in thi:s appeal.

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(7) I have heard learned counsel appearing for jthe appellant and perused the i records of both the courts below including judgment &;decree impugned.

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(8) That the plaintiff is the owner and tttle holder of the land bearing Khasra No.'336/l, area 0.30. acre (new Khasra No. 864) and he claimed easemenary right over the defendants' land bearing Khasra No.336/2 (New; No.869) and Khasra No.340/3(New No.868). (9) The trial Court. by its judgment and decree recorded a finding that plaintiff prior to filing ;of suit has filed an application under Section 131 of t|he 'the C.G. Land Revenue Code, 1959( for short Code') claiming right of way/other easement over .t|he defendants' land before the Tahsildar,'' Bemetara !and the Tahsildar, after due enquiry, has passed.the ordjer dated 21.1.1986:(Ex.D-l), ! in which it has clearly ye|en held that the plaintiff has n6 past passage on |the defendants' land and the has an plaintiff alternat|ijve way for use of his land. The aforesaid order has: b|egn challenged up to tKe Boarcl of Revenue and Board faf Revenue has maihtained the order of Tahsildar holdg.ng that the plaintiff has ,no past passage over the defendants' land and he has no easementary riight ow^r the defendants' :land. Apart from this, the trjjal Coubt is also considered the orai testimonies of'plaintifE's witnes'ses namely Prabhudas (PW-1) and Rameshwar Singh I ^ (PW-2)|and has fpund that .their testimonies 'suppocts the case of defendants and, therefore, the :plaint|i-E£ has failed to'::esfablisl'r tiis ca.se • for, ..granls;; ;of '• declaration'of easementarylrigKt. - i

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(10) Since, the plaintiff fa'iled to establish he was enjoying easement as of right wlthout interruption for a period of 25 years, in view of Section 15 of the: Indian Easements Act, 1882 (for short, the Act), tihe trial Court has rightly dismissed the suit holding that the plaintiff is.'not entitled for easementary right over tKe defendants' land and the same Has rightly been affirmed by the first appellate Court. Thus, the said findings recorded by both the courts below are finding of fact based on mateirial availaBle on record and I do not find it either or perverse contrary to record and no question of law much l;ess substantial question of l;aw is involved in t|h]is appeal. (11) Recently, the Supreme Court in the cas:e ; |of Vishwa.nath Agrawal, S/0 Sitaram Agrawal Vs. S^zjla Vishwanath Agcawal has held that High Court sho|u|l'd not disturb the concurrent finding of fact, unless finding recorded are perverse being based on no evidence. Para-36, 37 of report as under:' / • "36. In Major Singh Vs.'Rattan Slngh2 ±t has been observed thati when the courts below had rejected' and disbelieved fhe evidence on unacceptable grounds, it is the duty of the ;High Court to consider whether the reasons given by' the courts below are. sustairiable in law while hearing an appeal! under Section 100 o£ the Code of Civtli Procedure. •

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In. Vldhyadhan Vs. Manlkrao it has been ruled that th.e High Court in a second appeal should . not disturb the concurrent findings of fact unless it is shown that the findings recoreded by the | Courts below are pervere being based on ^ no evidence or that on the evidence on 'person record no reasonable could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decions of this Court ^ in Abdu-I RaheemV. Karnaraka Electricity Board ." •

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Keeping in view, the ratio of Idw iaid down by the Supreme Court in the aforesaid case, the concurrent finding of fact recorded by both the cciurts below is based on evidence, no substantial questidn] of law is involved in this fappeal,. thys appeal desqrjves to and accordingly dismissed at admission st'age itself. No order as to cost.

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Sd/-
SanjayK^Agrawal
Judge

Prabhu Das v. Santosh Kumar and Others

Case brief

What is this about?

What did the court decide?

Prabhu Das v. Santosh Kumar and Others

Case brief

What is this about?

What did the court decide?

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