Mariamma and Others vs Kalyani Amma and Another

K.A. Abdul Gafoor

The defendants in a suit for declaration of easement right to take water through their property and a mandatory injunction to direct them to remove the obstruction to a channel are the appellants in this Second Appeal. The suit was decreed. The appeal challenging the said decree was also dismissed confirming the trial court decree. The main contention urged before me is that if the easement right as claimed by the plaintiffs is allowed to be sustained the whole of their property lying on the northern side of the plaintiffs'' property would be rendered useless and no cultivation would be undertaken and it will become water logged area. Therefore, elaborating this contention they submit that that forms a substantial question of law as paused in the memorandum of appeal whether in such a suit for declaration the trial court is not bound to raise an issue as to the extent of damages that would be caused on the servient tenement. This is a mixed question of law and facts. Necessarily, there should be necessary pleadings by them, to urge this contention as a question of law. Apart from an evasive statement in the Written statement that their property will become useless, the extent of the damage that they may sustain is not specified in the written statement. In such circumstances, as held by the Supreme Court in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, such a mixed question of law and fact cannot be raised for the first time in the second appeal without foundation for such pleading in the written statement, to invite interference u/s 100 of the Code of Civil Procedure. So, that question of law does not help the appellants to assail the decree impugned. The other question of law urged before me is whether in a suit for declaration of right of easement by prescription the plaintiffs are not bound to prove by independent cogent evidence the uninterrupted use for the prescribed period or whether the courts can pass such a decree on the basis of presumptions based on circumstantial evidence. It is proof of facts based on evidence. In a second appeal re-appreciation of evidence is not possible. Both the courts below have appreciated the evidence and based on such evidence decreed the suit and confirmed the said decree in appeal. The jurisdiction available to this court u/s 100, as held in Navaneethammal v. Arjuna Chetty ((J.T. 1996 (7) SC 698) by the Supreme Court is very limited, and interference with finding of facts is not warranted if it involves reappreciation of evidence. Therefore, the second question of law urged also does not have any relevance in this case.

Appeal therefore fails. Dismissed.