The Supreme Court bench comprising Justices KM Joseph and S. Ravindra Bhat insisted that the requirement of a substantial question of law in a second appeal is not just a formality but has to be adhered to.

The respondent instituted the suit to declare that he has an easementary right to reach his lands in the property by walking on the ridges, which were situated in the centre of the appellant’s land to pass a mandatory injunction restraining the appellant or his agent from using the right of the plaintiff. The Trial Court found that the respondent had failed to establish his right as claimed and further found that there was an alternate way to the respondent’s land. The first appellate court affirmed the same and the High Court on second appeal held that the plaintiff is entitled to use the pathway for the purpose of reaching his land to carry on his agricultural activities peacefully and without any hindrance. 

Learned counsel for the appellant  Mr. S. Mahendran urged that a second appeal can be maintained before the High Court under Section 100 of the CPC only if a substantial question of law arises for its consideration. He pointed out that a perusal of the impugned judgment would show that a substantial question of law is conspicuous by its absence. Mr. Senthil Jagdeesan, learned counsel for the respondent pointed out that a substantial question of law was indeed framed by the High Court mindful of the jurisdiction of Section 100 of the CPC. 

The court opined “the limitation on the exercise of power by the High Court in the Second Appeal interfering with the judgment of the First Appellate Court is premised on high public policy. This limitation is sought to be secured by insisting upon the requirement that a Second Appeal is considered only when there is a substantial question of law. Therefore, the existence of substantial questions of law and the judgment which revolves around answering the substantial questions of law are not mere formalities. They are meant to be adhered to”. 

The court also noted that the First Appellate Court has come to the conclusion that the case based on Section 15 of the Indian Easements Act, 1882 is not made out. Unless the plaintiff establishes a right to use the property of another, there is no such thing as a natural right to use the property of another. “When the two Courts have concurred on appreciation of evidence, as is done in this case to discountenance the plea of the respondent and the High Court has not borne in mind any substantial question of law, we would think that the High Court has clearly erred in coming to the findings”. In this view, the court set aside the judgement of the High Court and allowed the appeal.