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C.P. Madhavan Nair Vs. Cheruvot Thazham Nilam Mulleri Parambath Kuttimalu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberS.A. No. 122 of 1977A
Judge
Reported inAIR1982Ker298
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 100(1) - Order 41, Rule 11; Code of Civil Procedure (CPC) (Amendment) Act, 1976 - Sections 97(1), 97(2) and 97(3)
AppellantC.P. Madhavan Nair
RespondentCheruvot Thazham Nilam Mulleri Parambath Kuttimalu and ors.
Appellant Advocate T.R. Govinda Wariyar,; K. Ramakumar and; Sebastian Davis
Respondent Advocate V.R. Venkatakrishnan,; K. Mohammed and; K.R.B. Kaimal
DispositionAppeal dismissed
Cases ReferredRaghavan Pillai v. Sainaba Beevi
Excerpt:
.....of plaintiff's right of way in concerned property belonging to respondents - appellant have no right of appeal on question of fact and his right confined to what provided for in amended provisions of section 100 for appeal on substantial question of law only - no evidence worthy of reliance to prove that appellant had been using as right wide strip of land for access to his house during period before suit without interruption - appeal dismissed. - - was amended by section 37 of the amendment act 104 of 1976 and a second appeal shall lie to the high court only if the high court is satisfied that the case involves a substantial question of law. the suit has, therefore, to fail. 9. the learned counsel for the appellant submits that the lower appellate court has failed to consider..........the ground that :'the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the court of first instance on such question.' sub-section (1) of section 97 of the civil p. c. amendment act, 1976 repealed clause (d) of sub-section (1) of section 100 inserted by section 4 of kerala act 13 of 1957. sub-section (1) of section 97 of the civil p. c. (amendment) act, 1976 is extracted below : '97 (1) any amendment made, or any provision inserted in the principal act by a state legislature or a high court before the commencement of this act shall, except in so far as such amendment or provision is consistent with the provisions of the principal act as amended by this act, stand repealed.'.....
Judgment:

P.C. Balakrishna Menon, J.

1. The plaintiff is the appellant. The suit is for a declaration of the plaintiff's right of way 8 1/2 feet wide across the B Schedule property, admittedly belonging to defendants 1 to 8. The plaintiff claims the right of way as an easement by prescription. The defendants conceded the plaintiff's right of way along the pathway 5 feel in width. They denied the plaintiff's right of easement over an 8 1/2 feet wide pathway.

2. The trial Court found that the plaintiff has established the right of way as claimed in the plaint as an easement by prescription and decreed the suit as prayed for. The lower appellate Court has reversed the decision of the trial Court and has found that the plaintiff has not been able to prove that he had been using as of right the pathway 8 1/2 feet wide across the plaint B schedule property for the statutory period of twenty years. It is against this that the plaintiff has come up in second appeal.

3. The learned counsel for the respondents. Sri V. R. Venkatakrisbnan has raised a preliminary point that a second appeal it maintainable only on a substantial question of law after the amendment of Civil P. C. by Act 104 of 1976 which came into force on 1-2-77. The second appeal was filed on 14-1-77 at a time when Clause (d) of Sub-section (1) of Section 100 of the Civil P. C. as amended in Kerala was in force. As per Clause (d) an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on the ground that :

'the finding of the lower Appellate Court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question.' Sub-section (1) of Section 97 of the Civil P. C. Amendment Act, 1976 repealed Clause (d) of Sub-section (1) of Section 100 inserted by Section 4 of Kerala Act 13 of 1957. Sub-section (1) of Section 97 of the Civil P. C. (Amendment) Act, 1976 is extracted below :

'97 (1) Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.' Sub-section (2) of Section 97 contains a saving provision in respect of matters enumerated in the different clauses in Sub-section (2). The relevant clause that is applicable to the present case is Clause (m). Sub-section (2) read with Clause (m) is extracted below.

'(2) Notwithstanding that the provisionl of this Act have come into force or the repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897,--

.....

(m) the provisions of Section 100 of the principal Act, as substituted by Section 37 of this Act, shall not apply to or affect any appeal from an appellate decree or order which had been admitted, before the commencement of the said Section 37, after hearing under Rule 11 of Order XLI and every such admitted appeal shall be dealt with as if the said Section 37 had not come into force.'

Sub-section (3) of Section 97 specifically enacts that save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by Act 104 of 1976 shall apply to every suit, proceeding, appeal or application, pending at the commencement of the Amendment Act Section 100 of the Civil P. C. was amended by Section 37 of the Amendment Act 104 of 1976 and a second appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law. The section requires the substantial question of law to be formulated in the memorandum of appeal and the High Court at the stage of admission is also required to formulate the substantial questions of law for decision in the appeal. As per Sub-section (5) of Section 100 the appeal shall be heard only on the questions so formulated subject to the power of the Court to hear, for reasons to be recorded, on any other substantial question of law not formulated by it at the stage of admission.

4. The learned counsel for the appellant, Sri T. R. Govinda Wariyar submits that the second appeal filed before the Amending Act came into force did not require admission as under Clause (d) of Sub-section (1) of Section 100 as it stood at the relevant period, the appellant had a right of appeal to this Court as the lower Appellate Court had reversed the decision of the trial Court on a question of fact material to the right decision of the case. It is true that the appellant had a right of appeal on a question of fact in respect of a matter falling under Order (d) of Sub-section (1) of Section 100 as it stood then. But that does not mean that the right of appeal on a question of fact would survive the repeal of Order (d) by the amendment of Section 100 by the Amending Act 104 of 1976. Sub-section (3) of Section 97 of the Amending Act expressly provides that the Civil P. G. as amended by Act 104 of 1976 shall apply to every suit, proceeding, appeal or application pending at the commencement of the Act. On a plain reading of Sub-section (3) of Section 97 there can hardly be any doubt that the amended Section 100 of the Civil P. C. applies to the present second appeal and the same is to be disposed of in accordance therewith.

The further question is whether the second appeal filed before the commencement of Act 104 of 1976 would come under the saving provision in Clause (m) of Sub-section (2) of Section 97 of the Amending Act. The saving provision relates only to appeals admitted after hearing under Rule 11 of Order 41 prior to the amendment of Section 100 by Section 37 of Act 104 of 1976. The fact that at the tune when the second appeal was filed there was no need for a posting of the appeal for admission does not mean that this is a second appeal admitted after hearing under Rule 11 of Order 41, C. P. C. This second appeal had not been posted under Rule 11 of Order 41 and this Court had no occasion to consider the question as to whether the second appeal should be dismissed under the aforesaid rule or whether it should be admitted for hearing after notice to the respondents. It is true that the second appeal was not posed under Rule 11 of Order 41 for the reason that at the time when it was filed it did not require admission and the appellant had a right of appeal to this Court since the lower Appellate Court had reversed the decision of the trial Court on a question of fact material to the decision of the case. But that does not qualify the second appeal for exemption provided for in d. (m) of Sub-section (2) of Section 97 of the Amending Act

5. A Division Bench of this Court in the decision reported in Sainuddin v. Pokkunhi, 1977 Ker LT 516, had occasion to consider whether Clause (m) of Sub-section (2) of Section 97 would apply to a second appeal filed before the commencement of the Amending Act but not admitted before that date. It was a case which required admission as it did not relate to an appeal falling under Clause (d) of Sub-section (1) of Section 100 as it then stood. This Court after considering the provisions of Clause (m) of Sub-section (2) of Section 97 of the amending Act held that the second appeal can be admitted only if it satisfies the requirements of Section 100 of the C. P. C. as amended by Act 104 of 1976 in spite of the fact that the second appeal had been filed prior to the commencement of the Amendment Act. The Division Bench has stated that the new statute even though does not take away the right of appeal impairs it by imposing onerous conditions on the right of exercise of that appeal and that Sub-section (3) of Section 97 of the Amending Act applies to cases not falling under Clause (m) of Sub-section (2) of Section 97. This Court after considering the applicability of Sub-sections (2) and (3) of Section 97 held as follows in para 6.

'The result is that while second appeals already admitted would have to be disposed of in accordance with the law prior to the amendment which came into force on 1-2-1977, appeals which have not been so admitted though filed earlier and appeals filed after 1-2-1977 would be governed by the provisions of Section 100 as amended.'

There can therefore be no doubt that the appellant will have no right of appeal on a question of fact and his right is confined to what is provided for in the amended provisions of Section 100, C. P. C. for an appeal on substantial questions of law only.

6. The learned counsel for the appellant relies on the decision of a Division Bench of this Court in Raghavan Pillai v. Sainaba Beevi, 1977 Ker LT 417, in support of the proposition that the appeal should be disposed of in accordance with the provisions of the C. P. C. as it stood at the time when the appeal was filed. The question for consideration in that decision was as to whether an appeal under Section 5 of the High Court Act on leave granted under the provisions of the laid Act by a learned single Judge of this Court was maintainable after the amendment of the C. P. C. by Act 104 of 1976. Section 100A introduced by the Amending Act provided that where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law.

This Court in the decision in Raghavan Pillai v. Sainaba Beevi, 1977 Ker LT 417, held that Section100A introduced by the Amending Act is not retrospective and in respect of an appeal where leave had already been granted a further appeal from a decision of a single Judge of the High Court would lie. Sub-section (3) of Section 97 of Act 104 of 1976 is not seen brought to the notice of the Division Bench, That case related only to the applicability of Section 100A introduced by the Amending Act and it does not relate to the maintainability of a second appeal on a question of fact as provided for under Clause (d) of Sub-section (1) of Section 100 as it stood prior to the amendment.

7. I have therefore no doubt that this second appeal which had not been admitted after hearing under Rule 11 of Order 41 will have to be disposed of in accordance with the amended provisions of Section 100 of the C. P. C.

8. The only other question is whether there is any substantial question of law arising for determination in this case. In para 5 of the plaint it is alleged, the right of way across the B schedule property is 8 1/2 feet in width. The defendants in their written statements have conceded a right of way 5 feet in width. The trial Court found on the evidence in the case that the plaintiff has established a right of way 8 1/2 feet in width by prescription as claimed in the suit. The lower Appellate Court has reversed the decision of the trial Court and has found that the plaintiff has established the right of way only to the extent conceded by the defendants. In para 13 Of the judgment there is a clear finding by the lower Appellate Court as follows :

'In any event, no evidence worthy of reliance has been let in the case to prove that the plaintiff had been using as of right an 8 1/2 ft. wide strip of land in the holding of defendants 1 to 8 for access to his house during a period of 20 years before suit without interruption. The suit has, therefore, to fail.'

This is finding on a question of fact.

9. The learned counsel for the appellant submits that the lower appellate Court has failed to consider whether the width of the admitted pathway was 8 1/2, feet as claimed by the plaintiff. There can hardly be any doubt that the burden is on the plaintiff to prove a right of easement by prescription in derogation of the title of the defendants. In para 5 of the plaint he has alleged that he had been using the pathwway also for vehicular traffic. The appellate Court has found that the vehicular traffic alleged was only for period much shorter than the prescriptive period required under the Easements Act. For this reason the appellate Court was not prepared to accept the plaintiff's case that he had acquired the right of way 8 1/2 feet in width by prescription. The plaintiff's right of way 5 feet in width is conceded by the defendants. Even though the question that required consideration by the appellate Court was in respect of the width of the pathway that the plaintiff has acquired by prescription, the appellate Court has considered the question of its user by the plaintiff and it has found that he has not established the user of the pathway for vehicular traffic for the prescriptive period and hence the pathway is not of such width as claimed in the plaint. May be that a different inference on facts is possible on the evidence in the case, but that is hardly a ground for interference in second appeal after its amendment by Act 104 of 1976.

This second appeal fails and is dismissed. No costs.


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