In a second appeal, the High Court dismissed the challenge to lower court judgments. The court confirmed the plaintiff's right to discharge water through a specific drain and upheld injunctions against defendants who obstructed this flow, finding no substantial question of law arising from the factual findings.
Appeal dismissed; parties to bear own costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 177 of 2017
Decided on : 12.9.2017.
Gian Chand and others …Appellants/Defendants Versus Mahajan and another ..Respondent/Plaintiff & Proforma respondent.
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. Surender Verma, Advocate. For the Respondents : Mr. K.D. Sood, Senior Advocate, with Mr. Sanjeev Sood, Advocate.
Tarlok Singh Chauhan, Judge (oral)
The defendants are the appellants and have come up in appeal against concurrent findings recorded against them by the learned Courts below.
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the defendants of the land comprised in Khasra Nos. 818, 820, 821, 822, 502, 507 situated in same Tika and Tappa. Previously, the Khasra No. 823 was owned by defendant Julfi Ram and in pursuance to a compromise in a civil suit, whole Khasra number was given to the plaintiff and in lieu, he gave land out of Khasra No. 821 in his favour. The house and cattle shed of the plaintiff is situated over Khasra Nos. 823 and 822. The plaintiff has constructed a boundary wall to his house just adjoining to path in pursuance to a compromise executed in a previous dispute with defendant Julfi Ram. It was averred that the plaintiff kept three holes/outlets in the said boundary wall for the flow of discharged water of the house, kitchen as well as bathroom etc. which on crossing the passage used to through the pucca drain situated on the back side of the house of Gian Chand, comprised in Khasra No. 819 and the house of Julfi Ram as shown in the site plan. The water after this drain passes through pucca drain in Khasra No. 818 which joints the main Challa of the village. It was averred that the water of the house of Shanker Dass is passing through this drain since time immemorial. The father of defendant Gian Chand filed a suit regarding flow of very same water which was compromised and as per which it was agreed that Shanker will not cause any obstruction to the flow of discharged water of the hosue and kitchen of the plaintiff. The suit was filed by defendant Julfi Ram with respect to some water bearing Civil Suit No. 403 of 1996 which was dismissed by the Court on 14.11.2003 and met with same fate in appeal on 23.02.2005. It was averred that except the above flow of water, there is no other outlet and in case of obstruction, it will cause nuisance to the plaintiff as well as other residents. It was averred that the defendants in
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second week of August, 2005 blocked the three holes in the boundary wall of the plaintiff and further the drain by erecting barricades shown with red ink in the site plan which has resulted in stagnation of the said water causing nuisance and giving foul smell. It was further averred that the defendants were requested to open the holes/outlets and to restore the drain, but in vain. Hence, the suit.
27.3.2006 framed the following issues:
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I have heard learned counsel for the parties and gone through the records of the case carefully.
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discharge of the water from his house, kitchen and bathroom into a pucca drain situated in Khasra No. 819 and these outlets have been closed by the defendants thereby blocking the drain. It was in this background that a prayer for permanent prohibitory injunction was made by the plaintiff for restraining the defendants from causing any obstruction.
(ii) A compromise was effected between defendant Julfi Ram and predecessor-in-interest of defendant No.2 Gian Chand vide Ex.P-11 on the basis of compromise decree Ex.P-9 was passed on 4.9.1990;
(iii) Compromise Ex.P-11 records the existence of drain through Khasra No. 819. Compromise Ex. PW-1/A dated 18.11.1996 effected between Julfi Ram and Gian Chand regarding the opening of ‘Challa’ ;
(v). Ex.P-13 is the order dated 1.7.1998 recorded by the then Senior Sub Judge during the spot inspection wherein he found that the plaintiff to have raised a wall ranging from 2 to 10 feet in his courtyard as per the compromise effected between the parties.
Thus, it stands established on record that the plaintiff had already constructed wall in the year 1998 and there is no evidence led by the
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defendants that the holes were constructed in the wall after few years of the construction of the same.
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and came to be opened only after a compromise to this effect was arrived at vide Ext.PW-1/A dated 18.11.1996.
“ 15……The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.”
“12. The phrase ‘substantial question of law’, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial
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question of law by suffixing 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 & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172, the phrase “‘substantial question of law” as it was employed in the last clause of the then existing Section 110 of the C.P.C. (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 as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549, the Constitution Bench expressed agreement with the following view taken by a Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264:-
“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 view, 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.”
and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:-
“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
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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.”
“14. 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 bearing on the decision of the case, if answered either way, in so far 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 is 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.”
on the correct appreciation of the pleadings and evidence and are pure findings of fact which are immune from challenge in second appeal.
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application, if any, also stands disposed of.
September 12, 2017. ( Tarlok Singh Chauhan ) (GR) Judge
2 issues framed by the court
Whether the findings of fact by lower courts regarding the flow of water and existence of drains constitute a substantial question of law for second appeal.
Whether the defendants are entitled to set aside the decree allowing injunction against obstruction of water flow.
Colour shows how this judgement treated each authority
Santosh Hazari vs. Purushottam Tiwari (deceased)Referred¶48
Santosh Hazari vs. Purushottam Tiwari (deceased) by LRs (2001) 3 SCC 179 · Who else cites this
Guran Ditta & Anr. Vs. T. Ram DittaReferred¶53
Guran Ditta & Anr. Vs. T. Ram Ditta, AIR 1928 Privy Council 172 · Who else cites this
Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd.Referred¶53
Sir Chunilal V. Mehta & Sons Ltd. Vs. The Century Spinning and Manufacuring Co., Ltd., (1962) Supp.3 SCR 549 · Who else cites this
Rimmalapudi Subba Rao Vs. Noony VeerajuReferred¶53
Rimmalapudi Subba Rao Vs. Noony Veeraju, ILR 1952 Madras 264 · Who else cites this
Gian Chand and others
Mahajan
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
