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Judgment
The present Second Appeal has been filed under Section 100 of the Civil Procedure Code by the appellants -original defendant being aggrieved with the judgment and Decree dated 29.12.2006 passed by the learned Additional Civil Judge, Dhoraji in Regular Civil Suit No. 195 of 2006 and confirmed by order dated 21.06.2016 by learned Additional District Judge, Dhoraji in Regular Civil Appeal No. 3 of 2010, wherein following substantial question of law are raised :- a) Whether the impugned order passed by the appellate Court is suffering from violation of order 41 Rule 31 of the Code of Civil Procedure?
b) Whether a power of attroney holder can depose on behalf of the principal for the facts, especially within the knowledge of the principal.
c) Whether the Court Commissioner appointed by the Court is supposed to record the statements of the parties regarding the facts of the record and mentioned it in the report of local inspection.
d) Whether the recital mentioned in the sale deed of one party is binding on the opposing party, wherein that opposite party is neither signatory nor party in the sale deed?
e) Whether the Courts below have committed serious error of interpretation of the provisions of the easement act?
Heard learned advocate Shri Bhavesh Trivedi for the appellants. Learned advocate Shri Bhavesh Trivedi has referred to the background of facts as well as judgments of both the courts below and submitted that though it can be said that in concurrent findings of facts much reliance has been placed on sale-deed Exh. 47 executed between third party and the respondent where the appellants here in was not party, and therefore, it does not give any right or confirmed any right. For that purpose, again learned advocate has referred to the order of the First Appellate Court and submitted that there is no specific finding with regard to the right which was existed earlier, and therefore, as there is no clear finding and the reliance is place only on the document at Exh. 47, present Second Appeal may be allowed.
In view of these submissions, the close scrutiny of both the judgments which are concurrent findings of fact clearly suggests that the Court below have considered about easementary right of way. Further, it has also been observed that the appellant has an alternate way , and therefore, having regard to the fact that since 1969, it has been used as a way for which easementary rights are claimed, which are confirmed by both the Courts on appreciation of material evidence, cannot be disturbed.
The Apex Court has laid down the guidelines with regard to scope of discretion under Section 100 of the Civil Procedure Code and in Para No.17 of the said judgment, what could be considered as a substantial question of law in light of the amendment in 1976 has also been discussed. A word caution has been expressed that while exercising discretion 100 of the Code of Civil Procedure concurrent findings of fact may not be disturbed unless there is substantial questions of law which can be said to have been involved.
As could be seen from the background of facts, on appreciation of material evidence, it can hardly be said any question of law much less any substantial questions of law is involved.
The submission made by learned advocate, emphasize is given only on document at Exh.47 is misconceived. Even the report of the Court Commissioner and the sketch have also been considered, and therefore, as could be seen from the judgment the findings arrived at on appreciation of relevant documents
The judgment of the Trial Court has also been confirmed, as there are concurrent findings of facts itself not call for any interference in exercise of discretion under Section 100 of the Code of Civil Procedure. The Hon''ble Apex Court has expressed the word caution with regard to the scope under Section 100 of the Code of Civil Procedure in the Second Appeal that the concurrent finding of that may not be disturbed unless there is a substantial questions of law involved. It is well settled that the High Court would not be justified in entertaining any such Second Appeal which could be termed as third appeal on facts. Therefore, present Second Appeal deserves to be dismissed and accordingly, stands dismissed.