(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.11.2006 made in A.S.No.63 of 2006 on the file of the learned Principal District Judge, Thanjavur, confirming the judgment and decree dated 07.04.2005 made in O.S.No.9 of 2000 on the file of the learned District Munsif, Thanjavur.)

1. This second appeal is focussed by the defendants 1 and 2 animadverting upon the judgment and decree dated 29.11.2006 made in A.S.No.63 of 2006 on the file of the learned Principal District Judge, Thanjavur, in confirming the judgment and decree dated 07.04.2005 made in O.S.No.9 of 2000 on the file of the learned District Munsif, Thanjavur.

2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court in O.S.No.9 of 2000.

3. Broadly, but briefly, narratively, but precisely, avoiding discursive discussion, the germane facts would run thus:

Kokilambal, the plaintiff, filed the suit in O.S.No.9 of 2000 seeking the following reliefs:

"1. Restraining the Defendant from disturbing the easementary right of the plaintiff over the suit lane in any way by their men and means by way of a permanent injunction.

2. Granting costs of this suit and

3. Granting such other and further reliefs as may be deemed fit in the circumstances of the case." (extracted as such), on the main ground that the said Kokilambal purchased the property vide Ex.A.1, the sale deed dated 30.04.1964 from one Muthusamy Pandian.

4. The grievance of the plaintiff was to the effect that even though the right of common passage was given in favour of the plaintiff by the plaintiffs vendor in the ABCD portion as found exemplified in the Commissioners report which emerged later during the pendency of the suit, the first defendant, Anandharaj started causing obstruction to the said common passage and in addition to that, he also claimed as though he was having exclusive right on the passage and also having right to take drainage water. The second defendant would also join hands with the first defendant who is the second appellant herein, in his plea.

5. The third defendant - S.Seethalakshmi had simply claimed the right of common passage over ABCD portion as well as KLMN portion as found mentioned in the Commissioners report.

6. The defendants 1 and 2 filed the written statement resisting the claim of the plaintiff. The third defendant simply asserted her right.

7. Whereupon the trial Court framed the relevant issues.

8. During trial, P.W.1 and P.W.2 were examined and Exs.A.1 to A.8 were marked on the side of the plaintiff. D.W.1 was examined and Exs.B.1 to B.10 were marked on the side of the defendants. Ex.C.1 and C.2 were marked as Court documents.

9. Ultimately, the trial Court decreed the suit of the first respondent/plaintiff herein.

10. It would not be out of place to specify herein that the said Anandharaj filed one other suit in O.S.No.46 of 2000 claiming exclusive right as set out supra. However, his suit was dismissed.

11. Being aggrieved by and dissatisfied with the common judgment rendered by the trial Court in both the suits, two appeals in A.S.Nos.63 and 64 of 2006 were filed by Anandharaj and Saraswathi, but both the appeals were dismissed.

12. As against which, the present second appeal has been filed by them challenging the concurrent findings in favour of Kokilambal in O.S.No.9 of 2000 as well as in A.S.No.63 of 2006.

13. No second appeal has been filed as against the judgment and decree passed in A.S.No.64 of 2006.

14. The learned Counsel for the defendants 1 and 2/appellants herein in the second appeal, by way of reiterating and recounting the grounds as found detailed and delineated in the grounds of appeal, would put forth and set forth his arguments as under:

The first appellate Court having chosen to hold that the ABCD pathway as found detailed by the Commissioner in his sketch as well as in his report, is a common pathway, without any rhyme or reason negatived the right of the defendants 1 and 2/appellants in taking the drainage water through the said ABCD lane. The first appellate Court was not justified in approbating and reprobating and such a finding by the first appellate Court warrants interference in second appeal. Accordingly, the learned Counsel for the appellants would suggest the following substantial questions of law:

"(a) Whether the Courts below have failed to consider as to whether the Plaintiff can abandon her case and claim relief based on the defence

(b) Have not the courts below erred in law in entertaining a single suit against 3 Defendants when the relief sought for did not arise out of same act or transaction or series of acts or transactions as per provisions of Order I Rule 3 of CPC

(c) Whether the courts below have failed to note that the relief based on title and easementary rights be claimed together when they are totally inconsistent to each other

(d) Have not the courts below erred in law in decreeing the suit of easementary right without any proof of the servient ownership

(d) Have not the courts below failed to note that the suit for easementary right cannot be decreed when admittedly pathway is available as per Commissioners report and plan

(f) Whether the Judgment and Decree of the Courts below are sustainable on the failure of the Lower Appellate Court to consider the entire evidence on record particularly the Lower Appellate Court being the final court of fact" (extracted as such)

15. At the outset itself, I would like to fumigate my mind with the following decisions of the Honourable Apex Court:

(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545 [LQ/SC/2006/449] . Certain excerpts from it, would run thus:

"17. After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. ....

18. .... It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. ...

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21. .... However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In Sir Chunilal case6 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju: (Sir Chunilal case6, SCR p. 557)

When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of the case it would not be a substantial question of law.

This Court laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: (Sir Chunilal case6, SCR pp. 557-58)

The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

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23. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari.)

24. ....

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to decision based on no evidence, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

(ii)KashmirSingh v. Harnam Singh and another reported in 2008 (4) SCALE 300. [LQ/SC/2008/552]

(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.

16. A mere poring over and perusal of those precedents would leave no doubt in the mind of this Court that unless there is a substantial question of law involved in the matter, the question of entertaining the Second Appeal under Section 100 of the Code of Civil Procedure, would not arise.

17. Keeping in mind the aforesaid dictum of the Honourable Apex Court, I proceed to analyse and scrutinize the case in the second appeal.

18. The first appellate Court being the last Court of facts, threadbare discussed the oral and documentary evidence and arrived at the conclusion that the ABCD portion constituted the common passage for all the parties to the lis. While holding so, the first appellate Court hastened to add that simply because those parties are having the right of ingress and egress through ABCD lane, that it does not mean that they could burden the small lane of 3 feet width by making the sewage and sullage water to flow through it while there is a KLMN portion which is also a common space meant for the use of the defendants 1 to 3 in O.S.No.9 of 2000. In fact, the Commissioner also observed that the third defendants drainage pipe is passing through that space viz., KLMN portion.

19. My mind is redolent and reminiscent of the maxim "Sic utere tuo ut alienum non laedas." [So use your own as not to injure anothers property]. Neither of the parties could use the ABCD portion to the detriment of the others. There should peaceful co-existence respecting mutual rights of the parties.

20. I am at a loss to understand as to why then in this factual matrix, the appellants/defendants 1 and 2 should have grievance at all. ABCD pathway portion is situated to the east of the houses of the defendants 1 to 3 and to the west of the house of the plaintiffs plot. To the west of the houses of the defendants 1 to 3, KLMN portion is situated which is a common space for the defendants 1 to 3. In fact, the sale deed of the second defendant, Ex.B.10, would envisage a categorical description to the effect that the space (ABCD) situated to the east of the second defendants property and the space (KLMN) situated to the west of her property, could be used by her along with others.

21. The finding of fact by the first appellate Court is to the effect that ABCD portion which is situated to the east of the defendants property and to the west of the plaintiffs property, is being used as a common passage by both the plaintiff and the defendants. However, no drainage facility is available there and the plaintiff whose house is situated to the east of the ABCD portion has not claimed any right to take the drainage water through that space also. On the other hand, it is the first defendant whose plot is situated at the corner portion of ABCD as well as Shivaji Nagar Main Road, is having multifarious facilities and he could take his drainage water from his house to Shivaji Nagar Main Road and even through KLMN portion also, he could take his drainage water.

22. Not to put too fine a point on it, even by phantasmagorical thoughts or by any stretch of imagination, the grievance of the first defendant cannot be countenanced and upheld as one tenable under law. So far the second defendants property is concerned, no doubt, it is situated abutting the interior portion of ABCD lane and to the west of the second defendants property, KLMN portion is there which she is entitled to use it for draining the sewage and sullage water emanating from her house. When such is the position, I am at a loss to understand as to how the appellants/defendants 1 and 2 can be heard to contend that they are aggrieved by the finding of fact by the first appellate Court.

23. The defendants 1 and 2 if they start taking their drainage and sullage water through ABCD portion, that small pathway would land the parties into a can of worms. Neither is it the case of the plaintiff nor is it the contention of the defendants that ABCD passage is sufficiently a broad pathway/lane/road so as to burden it further by allowing the riparian owners of houses situated on either side to take their sewage and sullage water through it. If it is a pathway/lane of at least ten or fifteen feet, then such probabilities of taking sewage water could be considered additionally.

24. A fortiori, there is no question of law much less a substantial question of law involved in this second appeal.

25. To the risk of repetition and pleonasm, but without being tautologous, I would like to reiterate that ABCD portion is meant for the ingress and egress of the plaintiff and the defendants 1 to 3 as a common passage and KLMN portion is meant for the common use of the defendants 1 to 3 and they could use KLMN portion for taking their sewage and sullage water through it.

26. In the result, the second appeal is dismissed, confirming the judgment and decree dated 29.11.2006 made in A.S.No.63 of 2006 on the file of the learned Principal District Judge, Thanjavur, in confirming the judgment and decree dated 07.04.2005 made in O.S.No.9 of 2000 on the file of the learned District Munsif, Thanjavur. Consequently, the connected Miscellaneous Petition is dismissed. No costs.