HERO VINOTH (MINOR) versus SESHAMMAL

Citation: [2006] SUPP. 2 S.C.R. 79 · Decided: 08-05-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

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HERO VINOTH (MINOR) 
A 
V. 
SESHAMMAL 
MAY 8, 2006 
[ARIJIT PASAYAT AND R.V. RAVEENDRAN, JJ.] 
B 
Code of Civil Procedure, 1908 : 
Section JOO-Second appeal-Substantial question of law-Scope of-
Inter:ference-Wherr-Held, when there is misconstruction of document or 
wrong application of principle of law in construing a document, or when 
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question of law is not covered by any specific provision of law or settled legal 
principle emerging from binding precedents and involves debatable issue, 
or when court below has decided matter ignoring or acting contrary to 
settled position of law, or when co~rts below have ignored material evidence 
or acted on no evidence, or when courts below have drawn wrong inferences 
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from proved facts by applying law erroneously, or when courts have wrongly 
cast burden of proof-In the facts held courts below misconstrued document 
creating an easement by grant as an easement of necessity. 
Indian Easement Act, 1882-Sections 13 & 41-Distinction between 
easement of grant and easement of necessity-Held, easement of grant is a 
matter of contract between the parties and limits of such an easement is 
controlled by the terms of contract-Easement of necessity is one which is 
not merely necessary for reasonable employment of the dominant tenement, 
but where dominant tenement cannot be er!)oyed at all without the easement 
and such an easement lasts only as long as the necessity exists and gets 
extinguished by statutory provision under Section 41-Provision of legal 
extinction under Section 41 does not apply to acquisition by grant-In the 
facts, held, right of wcry provided to a particular sharer under partition deed 
was an easement of grant being a matter of contractual arrangement and 
cannot be extinguished 
Words & Phrases-Meaning of 'Easement of grant' & 'Easement of 
necessity' in the context of the Indian Easement Act, 1882. 
A Partition Deed was executed between five brothers. Appellant 
purchased a portion of property coming to the share of one brother and 
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SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R. 
A 
filed a suit for prohibitory injunction to restrain the respondent-defendant, 
wife of another deceased brother, from causing obstruction in putting up 
compound wall in his portion of property. The case of respondent-
defendant was that a right of way had been granted in terms of the 
partition deed and the proposed construction would obstruct her right 
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of way. Trial Court decreed the suit holding that right of way granted 
under partition deed was an easement of necessity and ceased to exist 
under Section 41 of the Indian Easement Act, 1882 when respondent got 
other access to her portion of the property. Appeal filed by respondent 
against judgment of Trial Court was dismissed. Respondent preferred 
Second Appeal which was allowed by High Court on the ground that the 
Courts below failed to distinguish between easement of necessity and 
easement acquired by grant and that the right of way given under the 
partition deed was one of grant and not an easement of necessity. Hence, 
this appeal by the plaintiff. 
Appellant contended that parameters of Section 100 C.P.C. were 
not kept in view by the High Court while allowing the Second Appeal. 
Dismissing the appeal, the Court 
HELD: 1. The principle relating to Section 100 CPC, relevant for 
the case, may be summarised thus : [80-B) 
(i) An inference of fact from the recitals or contents of a document is 
a question of fact. But the legal effect of the terms of a document is a 
question of law. Construction of a document involving the application of 
any principle of law, is also a question of law. Therefore, when there is 
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misconstruction of a document or wrong application of a principle of law 
in construing a document, it gives rise to a question of law. [90-C, DI 
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(ii) The High Court should be satisfied that the case involves a 
substantial question of law, and not a mere question of law. A question of 
law having a material bearing on the decision of the case (that is, a 
question, answer to which affects the rights of parties to the suit) will be a 
substantial question of law, if it is not covered by any specific provisions 
of law or settled legal principle emerging from binding precedents, and, 
involves a debatable legal issue. A substantial question of law will also 
arise in a contrary situation where the legal position is clear, either on 
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account of express provisions 

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