PAULOSE Vs. RAJAN

JUDGEMENT

(1.) Plaintiff is the appellant. Suit was for declaration of easement right by prescription over C schedule pathway to reach A schedule property owned by the plaintiff extending about more than 3 acres. He is the owner of the property as per partition deed of the year 1974, Art. A2. He suffered dismissal of the suit at the lower appellate stage. Second Appeal was allowed as per judgment dated 29.10.97. The defendant took up the matter before the Supreme Court as Civil Appeal No. 3679/99. The Supreme Court found that this Court did not strictly keep in view the jurisdiction vested in this Court under S.100 of the Code of Civil Procedure as enunciated by the Supreme Court in Kritish Chanbdra Purkait v. Santhosh Kumar ( 1997 (5) SCC 438 ); in so far as this Court did not formulate a substantial question of law to allow the appeal. Accordingly, the said judgment was set aside and the Second Appeal was restored to the file of this Court to decide the matter afresh in accordance with law "in the light of the jurisdiction available to the High Court under S.100 CPC. Notice has been issued in the Second Appeal on the substantial questions of law formulated in the memorandum of appeal. Two questions were so formulated. Those are,

(2.) The first question of law is based on the finding contained in Para.9 of the judgment of the lower appellate Court. The lower appellate Court found that,

(3.) But this will not save the plaintiff from averting the decree in this case. The second question of law, urged as above, is totally based on the alleged "non consideration of material items of evidence and palpably wrong understanding of the items of evidence by the lower appellate Court, which according to the appellant vitiates the judgment impugned. Consideration of this aspect involves reappreciation of evidence. The jurisdiction vested in this Court under S.100 of the Code of Civil Procedure will not stretch to the extent of reappreciation of evidence. It is contended that when the judgment is totally wrong and essentially erroneous as compared to the evidence on record, this Court can interfere with the findings of the lower appellate Court. The decision rendered by me in Paramu Vijayasree v. Paramu Jayaprakash ( 1999 (3) KLT 343 ) is relied on to substantiate this proposition. It is true that I have held, following the decision of the Privy Council and the Supreme Court, that this Court can reappreciate the evidence while considering a second appeal where the findings by the Courts below on facts are vitiated by "non consideration of relevant evidence or by an essentially erroneous approach to the matter." The approach of the lower appellate Court in this case is discernible from the findings contained in Para.8 of its judgment. The lower appellate Court found as follows: