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Case Number

S.A No. 122 of 1977 A

Attorney(S)

For the Appellant: V.R. Venkatakrishnan K. Mohammed K.R.B. Kaimal

Judges

P.C Balakrishna Menon, J.

Acts

(1) of S. 97 of the Civil P.C Amendment Act, 1976 repealed Cl. (d) of sub-sec. (1) of S. 100 inserted by Section 4 of Kerala Act 13 of 1957. Sub-section (1) of S. 97 of the Civil P.C (Amendment) Act, 1976
provisions of Sec. 6 of the General Clauses Act, 1897 . .. .. (m) the provisions of S. 100 of the principal Act,
S. 100 by the Amending Act 104 of 1976. Sub-section (3) of Section 97 of the Amending Act
sub-section (2), the provisions of the principal Act, as amended by Act 104 of 1976
provision in Cl. (m) of sub-sec. (2) of Section 97 of the Amending Act.
provisions of Cl. (m) of sub-sec. (2) of S. 97 of the amending Act
Cl. (m) of sub-sec. (2) of S. 97 of the Amending Act.5.
Sub-section (3) of S. 97 of Act 104 of 1976
Act, stand repealed. Sub-section (2) of S. 97
sub-sec. (3) of Sec. 97 of the Amending Act
S. 37 of the Amendment Act 104 of 1976
Cl. (m) of sub-sec. (2) of Section 97.
Cl. (d) of sub-section (1) of S. 100
Act 104 of 1976. Section 100-A
Amendment Act. Section 100
S. 5 of the High Court Act
S. 100 by S. 37 of Act 104
Cl. (m). Sub-section (2)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff (now appellant) instituted a suit seeking a declaration that he had a right of way 8½ feet wide across the B-schedule property owned by defendants 1 to 8. The plaintiff claimed the right of way as an easement by prescription. The defendants conceded a right of way 5 feet in width but denied any right to an 8½ feet wide pathway.

At trial the Trial Court found that the plaintiff had established the right of way as claimed and decreed the suit accordingly. The lower Appellate Court reversed the Trial Court's decision, holding that the plaintiff had not proved use "as of right" of an 8½ foot wide pathway across the B-schedule property for the twenty-year prescriptive period. The plaintiff challenged that appellate reversal in a second appeal to the High Court.

Legal Issues Presented

Whether the second appeal (filed 14-1-77, before the commencement of Act 104 of 1976 on 1-2-77) is maintainable under the pre-amendment provisions of Section 100(1)(d) of the Civil P.C., or whether the amended provisions of Section 100 (introduced by S.37 of Act 104 of 1976) apply to this appeal.
If the amended Section 100 applies, whether there arises in this case any "substantial question of law" entitling the appellant to maintain the second appeal under the amended regime.
Whether the plaintiff proved, as a matter of fact, a right of way 8½ feet wide by prescription (i.e., whether the factual findings of the lower Appellate Court denying such prescriptive user are open to interference in a second appeal governed by the amended Section 100).

Arguments of the Parties

Respondents' Arguments

The respondents' counsel (Sri V.R. Venkatakrishnan) raised a preliminary point that, after the amendment of the Civil P.C. by Act 104 of 1976 (effective 1-2-77), a second appeal is maintainable only on a substantial question of law. Therefore, the second appeal should be subject to the amended Section 100 requirements.

Appellant's Arguments

The appellant's counsel (Sri T.R. Govinda Wariyar) submitted that because the second appeal was filed before the commencement of Act 104 of 1976, the appeal did not require admission under Rule 11 of Order XLI and that, at the time of filing, the appellant had a right of appeal under Clause (d) of Section 100(1) (i.e., on a question of fact). Accordingly, the appellant argued the appeal should be disposed of under the law as it stood when the appeal was filed.
The appellant further contended that the lower Appellate Court failed to consider whether the width of the admitted pathway could be 8½ feet as claimed and that different factual inferences might be open on the evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sainuddin v. Pokkunhi, 1977 Ker LT 516	Considered whether Clause (m) of Section 97(2) of the Amending Act applied to second appeals filed before commencement but not admitted before that date; addressed whether such appeals are governed by the amended Section 100.	The Court relied on this decision to hold that appeals filed but not admitted before the amendment are governed by the provisions of Section 100 as amended by Act 104 of 1976 (i.e., the amended statutory regime applies to appeals not admitted after hearing before commencement).
Raghavan Pillai v. Sainaba Beevi, 1977 Ker LT 417	Dealt with the non-retrospective operation of Section 100-A introduced by the Amending Act and whether a further appeal under Section 5 of the High Court Act was maintainable where leave had been granted prior to the amendment.	The Court distinguished this case: it concerned Section 100-A and was held not to be retrospective; the decision did not address applicability of Section 97(3) and therefore did not govern the present question of maintainability of a second appeal on a question of fact under Clause (d) as it stood prior to amendment.

Court's Reasoning and Analysis

The Court proceeded in two stages: (A) the threshold question of the statutory regime applicable to the second appeal; and (B) whether a substantial question of law arises (and the merits-related factual inquiry).

(A) Statutory regime and maintainability

The respondents relied on the amendment to Section 100 introduced by S.37 of Act 104 of 1976, which limited second appeals to cases involving a "substantial question of law" and required formulation of that question in the memorandum of appeal and at the admission stage.
The appellant pointed out the appeal was filed on 14-1-77 (before the Amending Act came into force on 1-2-77) and that Clause (d) of Section 100(1), as it then stood, allowed appeals on certain questions of fact. The appellant argued that the appeal should be governed by the law in force at the time of filing.
The Court analysed Section 97 of the Amending Act. Section 97(1) repealed inconsistent prior state or High Court amendments; Section 97(2) contained saving clauses, including Clause (m), which preserved the substituted Section 100 in respect of appeals admitted after hearing under Rule 11 of Order XLI prior to the amendment; and Section 97(3) provided that, subject to sub-section (2), the provisions of the principal Act as amended shall apply to proceedings pending at the commencement of the Amendment Act.
The Court concluded that the saving in Clause (m) applies only to appeals that had been admitted after hearing under Rule 11 of Order XLI prior to the amendment. Because the present second appeal had not been admitted after hearing under that rule, it did not fall within the Clause (m) exception.
The Court relied on the Division Bench decision in Sainuddin v. Pokkunhi, which had held that appeals filed but not admitted before the amendment would be governed by the amended Section 100. The Court distinguished the appellant's reliance on Raghavan Pillai v. Sainaba Beevi, observing that that decision concerned Section 100-A and was not on all fours with the present question (and did not deal with Section 97(3)).
On this statutory reading and authority, the Court held that the amended Section 100 applies to the present second appeal and that the appellant's right of appeal on a question of fact under the earlier Clause (d) did not survive the repeal and amendment.

(B) Existence of a substantial question of law and factual review

Given that the amended Section 100 applies, the Court examined whether any substantial question of law arises for decision. The pleadings allege an 8½ foot right of way (para 5 of the plaint); defendants conceded 5 feet.
The Trial Court had found the plaintiff established a right of way (noted in the opinion as 8 feet in width) by prescription. The lower Appellate Court reversed and found that the plaintiff had not proved use "as of right" of an 8½ ft wide strip for twenty years; instead the appellate court limited the right to the defendants' concession (5 feet).
The Court characterised the lower Appellate Court's conclusion that the plaintiff failed to prove the requisite prescriptive user for an 8½ ft width as a finding of fact.
The appellant argued the appellate court failed to consider whether the admitted pathway could be 8½ ft and that different factual inferences were possible. The Court emphasised that the burden of proof lay on the plaintiff to establish an easement by prescription in derogation of the defendants' title, and noted that the appellate court found evidence of vehicular user was for a period much shorter than the prescriptive period required under the Easements Act.
Although the Court acknowledged that a different factual inference might have been possible on the evidence, it held that such a possibility does not furnish a ground for interference in a second appeal governed by the amended Section 100 (which permits appeals only on substantial questions of law). Consequently, there was no substantial question of law warranting admission or reversal of the appellate court's factual finding.

Holding and Implications

Holding: The second appeal is dismissed. Appeal dismissed. No costs.

Implications:

Direct effect on the parties: the reversal by the lower Appellate Court stands; the plaintiff's claim to an 8½ foot prescriptive right of way was not sustained and the defendants' concession to a 5 foot right of way remains the extent recognised by the appellate process in this case.
Statutory/administrative consequence as applied in this opinion: the Court held that second appeals which had not been admitted after hearing under Rule 11 of Order XLI prior to the commencement of Act 104 of 1976 are to be governed by the amended provisions of Section 100 of the Civil P.C. — i.e., such appeals are maintainable only where a substantial question of law is formulated and established under the amended procedure.

Disposition

Appeal dismissed.

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C.P Madhavan Nair v. Cheruvot Thazham Nilam Mulleri Parambath Kuttimalu And Others

1. The plaintiff is the appellant. The suit is for a declaration of the plaintiff's right of way 8½ 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 feet in width. They denied the plaintiff's right of easement over an 8½ 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 8½ 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 Venkatakrishnan has raised a preliminary point that a second appeal is 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 Cl. (d) of sub-section (1) of S. 100 of the Civil P.C as amended in Kerala was in force. As per Cl. (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 S. 97 of the Civil P.C Amendment Act, 1976 repealed Cl. (d) of sub-sec. (1) of S. 100 inserted by Section 4 of Kerala Act 13 of 1957. Sub-section (1) of S. 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 S. 97 contains a saving provision in respect of matters enumerated in the different clauses in sub-sec. (2). The relevant clause that is applicable to the present case is Cl. (m). Sub-section (2) read with Cl. (m) is extracted below.

“(2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-sec. (1) has taken effect, and without prejudice to the generality of the provisions of Sec. 6 of the General Clauses Act, 1897—

…… …… …… …. ….. ….. ……

(m) the provisions of S. 100 of the principal Act, as substituted by S. 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 S. 37, after hearing under R. 11 of O. XLI and every such admitted appeal shall be dealt with as if the said S. 37 had not come into force.”

Sub-sec. (3) of S. 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 S. 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-sec. (5) of S. 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 Cl. (d) of sub-sec. (1) of Sec. 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 Cl. (d) of sub-sec. (1) of S. 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 Cl. (d) by the amendment of S. 100 by the Amending Act 104 of 1976. Sub-section (3) of Section 97 of the Amending Act expressly provides that the Civil P.C 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-sec. (3) of S. 97 there can hardly be any doubt that the amended S. 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 Cl. (m) of sub-sec. (2) of Section 97 of the Amending Act. The saving provision relates only to appeals admitted after hearing under R. 11 of O. 41 prior to the amendment of S. 100 by S. 37 of Act 104 of 1976. The fact that at the time 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 R. 11 of O. 41, C.P.C This second appeal had not been posted under R. 11 of O. 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 R. 11 of O. 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 Cl. (m) of sub-sec. (2) of S. 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 Cl. (m) of sub-sec. (2) of Sec. 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 Cl. (d) of sub-sec. (1) of S. 100 as it then stood. This Court after considering the provisions of Cl. (m) of sub-sec. (2) of S. 97 of the amending Act held that the second appeal can be admitted only if it satisfies the requirements of Sec. 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-sec. (3) of Sec. 97 of the Amending Act applies to cases not falling under Cl. (m) of sub-sec. (2) of Section 97. This Court after considering the applicability of sub-secs. (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 S. 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 S. 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 S. 5 of the High Court Act on leave granted under the provisions of the said 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 100-A 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 S. 100-A 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 S. 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 S. 100-A 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 Cl. (d) of sub-sec. (1) of S. 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 R. 11 of O. 41 will have to be disposed of in accordance with the amended provisions of S. 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 8½ 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 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 8½ 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 8½ 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 8½ 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.

Appeal dismissed.

C.P Madhavan Nair v. Cheruvot Thazham Nilam Mulleri Parambath Kuttimalu And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Disposition

C.P Madhavan Nair v. Cheruvot Thazham Nilam Mulleri Parambath Kuttimalu And Others

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