IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY SEVENTH DAY OF AUGUST TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE G.CHANDRAIAH S.A. No.745 of 2010 Between: Ramesh Kumar Dalia, S/o.Nathmal Dalia. … Appellant And K.Narayan, S/o.Govindappa. … Respondent THE HON’BLE SRI JUSTICE G.CHANDRAIAH S.A. No.745 of 2010 JUDGMENT: This Second Appeal has been filed by the appellant/plaintiff against the judgment and decree dated 23.03.2010 passed in A.S. No.83 of 2009 by the learned VIII Additional District Judge, Nizamabad dismissing the appeal and confirming the judgment and decree passed in O.S. No.222 of 2003, dated 03.07.2009 by the learned Principal Junior Civil Judge, Nizamabad. The appellant and the respondent herein are the plaintiff and the defendant, respectively, in O.S. No.222 of 2003. The parties hereinafter referred to as they were arrayed in the said suit. At the out set, the plaintiff filed O.S. No.222 of 2003 against the defendant seeking the relief of perpetual injunction restraining him from interfering with his right over the alleged common lane measuring 7 feet in width situate on the Eastern side of his open land bearing Municipal Door No.7-1-100 at Goshala Road, Nizamabad as the suit lane has been used for the purpose of passage for the last more than 25 years. Brief facts of the case of the plaintiff was that he purchased the open plot bearing Door No.7-1-1000 situated near Goshala Road, near Railway gate, Nizamabad from one Satyavathi under the registered sale deed bearing document No.3071 of 2003 dated 24.02.2002. The suit lane is situated to the East of that open land. The defendant, who owns property adjacent to the suit lane, raised objection on 28.04.2003 to the use of the lane by the plaintiff alleging that the lane belongs to him exclusively. The defendant, with the help of ante social elements, stopped the plaintiff from using the suit lane. Hence, the plaintiff filed the suit. Denying the averments of the plaintiff, the defendant filed written statement alleging that there is a small room with tine roof in existence on the open land purchased by the plaintiff. He denied the existence of the suit lane to the East of the property purchased by the plaintiff and that has been in use for the last 25 years. He stated that the land on Northern side, which is shown as A, B , C , D , E , F , G and H in Yellow colour in the map enclosed to the written statement, belongs to him exclusively and there was a gate on the Eastern side and that neither the plaintiff nor his venodr’s vendor has any right over that lane. He further stated that the plaintiff and other neighbours have separate way to reach Goshala road to Gurbabadi road and his land A, B, C, D, E, F, G and H is never used by them for passage to that road. Based on the above rival contentions, the learned trial Court framed the following issues for trial: “1. Whether the plaintiff purchased open land without any structures over it? 2. Whether there is any common lane as claimed by the plaintiff? 3. Whether the plaintiff is having right to use such alleged common lane? 4. Whether such right of plaintiff is interfered illegally? 5. Whether the plaintiff is entitled for perpetual injunction as prayed? 6. To what relief?” On behalf of the plaintiff, the plaintiff was examined as P.W.1 and Exs.A-1 and A-2 were got marked. On behalf of the defendant, the defendant was examined as D.W.1 and his nephew Kesari Kiran Kumar was examined as D.W.2 and Exs.B-1 to B-10 were got marked. After appreciation of the evidence on record, the learned trial Court dismissed the suit holding that the plaintiff has failed to prove his case. Aggrieved by the same, the plaintiff preferred an appeal A.S. No.83 of 2009 and the learned VIII Additional District Judge, Nizamabad, first appellate Court, while confirming the judgment and decree passed by the learned trial Court, dismissed the appeal. Assailing the same, the plaintiff preferred the present second appeal. The learned counsel for the appellant/plaintiff, in addition to the substantial question of law, raised in the grounds of appeal, contends that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an easement of necessity thereby materially affecting the decision in the case certainly it gives rise to a substantial question of law. Based on the said principle, the learned counsel for the appellant contends that though two sale deeds i.e. Exs.A-1 and A-2, show the existence of the common lane, both the Courts below have erred in holding that there is no existence of suit lane. Therefore, it is the substantial question of law to interfere under Section 100 CPC. In support of his contention, he placed reliance on the judgment of HERO VINOTH (MINOR) v. SESHAMMAL[1]. He also contended that when the parties have proved their right to access to the lane in question, the Courts below ought to have granted injunction restraining the defendant from interfering with the peaceful use of passage applying principle of right to passage. In this regard, he placed reliance on the judgment supra at para 30. Eventually, he contended that both the Courts below have committed an error in dismissing the suit and contended to allow the appeal. On the other hand, the learned counsel for the respondent/defendant contended that both the Courts below have given the concurrent finding on the question whether the plaintiff had proved his case. He further contended that having appreciating the evidence on record by both the Courts below found that the plaintiff did not prove his case for granting relief as sought for. Therefore, the plaintiff had not made out any case by raising question of law, more so, substantial question of law. Therefore, no interference is called for under Section 100 CPC. Further, it is also contended that the facts and circumstances of the judgment supra, reliance placed by the learned counsel for the appellant/plaintiff, are different from the facts and circumstances of the case on hand. Therefore, the judgment supra is not applicable to the present case and the appeal is liable to be dismissed. Heard the learned counsel on either side and perused the material on record. From a perusal of the record, it is clear that the plaintiff purchased plot under registered sale deed from his vendor Smt.Sathyavathi. There was a 7 feet width lane separates the plot of plaintiff and house of his vendor. The main grievance of the plaintiff was that this 7 feet lane runs up to the road of Goshala and Gurbabadi road and the same was being used by his vendor for the last 25 to 30 years. Hence, the defendant cannot obstruct him from using the said lane. In support of his case, he adduced Exs.A-1 and A-2, registered sale deeds, and from these documents it reveals that there is 7 feet common lane that was meant for the use of the plaintiff portion and the portion of vendors of plaintiff. Taking advantage of the same, the plaintiff is claiming the entire lane, which leads up to Goshala Gurbabadi main road through the land of the defendant. Further, the plans adduced shows that the common lane exists only up to the plot purchased by the plaintiff under Ex.A-1 but not up to Goshala Gurbabadi main road, which passes through the land of the defendant. From a perusal of Ex.B-3, CC of registered sale deed, it is clear that the area shown in ‘ABCDEFG and H’ open place is surrounded by land of the defendant and his family exclusively. Therefore, the land in ‘ABCDEFG and H’ belongs to the defendant and the plaintiff cannot claim right of passage from the land of the defendant. The plaintiff, except adducing Exs.A-1 and A-2 and examining himself as P.W.1, no other witness was examined to prove that there is lane existence up to Goshal Gurbabadi main road. It is also obvious from the record that the plaintiff had submitted that he purchased open land but from a perusal of Exs.B-1, B-2 and B-5, it is clear that there is structure in existence on the land purchased by the plaintiff, but the plaintiff by suppressing the factum of the existence of the structure, filed the suit as if there is open land and adjacent to it, there is common passage. In view of the above, I am of the view that both the Courts below have rightly appreciated the evidence on record and rejected the claim of the plaintiff. Coming to the aspect of placing reliance on the judgment supra by the learned counsel for the appellant, it is necessary to look into that judgment, which reads as under: “16. It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100, CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law. 30. Above being the position, the High Court was right in holding that the parties clearly provided for a right of access to the backyard of the defendant’s house when the partition deed was executed and shares were allotted to various shares taking into account various factors and it is a matter of contractual arrangement between them. In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way. The High Court’s reasoning and conclusions do not suffer from any infirmity to warrant interference.” It is clear from the para 16 of the above judgment that the above para deals with for interference under Section 100 CPC when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document. But, whereas, the case on hand both the Courts below have rightly discussed with regard to the documents adduced from either side, particularly, Exs.A-1 and A-2 wherein clearly recites that the common lane exists only up to the plot purchased by the plaintiff under Ex.A-1. Therefore, in the case on hand, there is no misconstruction of a document or wrong application of a principle of law while interpreting a document. Further para 30 deals with the facts and circumstances therein that there was a partition deed but the facts and circumstances of the case on hand are altogether different. Therefore, the reliance placed on the judgment supra by the learned counsel for the appellant/plaintiff is not applicable to the facts and circumstances of the case on hand. Having regard to the facts and circumstances of the case and the submissions made by the learned counsel on either side and in view of the above, I am of the view that the appellant/plaintiff had failed to make out any case calling for interference of this Court and there is no question of law, more so, substantial question of law, involved in this case. Therefore, the present second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. There shall be no order as to costs. _________________________ JUSTICE G. CHANDRAIAH Date: 27.08.2010 LSK [1] AIR 2006 SUPREME COURT 2234