Abdulla v. Aboobacker and Ayisha

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 20[TH] DAY OF OCTOBER 2023 / 28TH ASWINA, 1945 ``` ## _`RSA NO. 609 OF 2023`_ ``` AGAINST THE JUDGMENT AND DECREE DATED 30.06.2023 IN AS 2/2022 OF THE SUBORDINATE COURT, MANJERI AND AGAINST JUDGMENT AND DECREE DAETD 09.12.2022 IN OS 503/2015 ``` ``` OF MUNSIFF COURT, MANJERI ``` ## _`APPELLANT/APPELLANT/DEFENDANT:`_ ``` ABDULLA AGED 72 YEARS S/O MUHAMMED, THARAMANNIL HOUSE, ANAKKAYAM AMSOM DESOM, ANAKKAYAM P.O., ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676509 BY ADVS. K.N.ABHILASH SUNIL NAIR PALAKKAT ``` ## _`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`_ ``` 1ABOOBACKER AGED 73 YEARS S/O MUHAMMED, KOORIMANNIL, VALIYAMANNIL HOUSE, MUTTIPPALAM, ANAKKAYAM AMSOM DESOM, ANAKKAYAM P.O., ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676509 2AYISHA AGED 66 YEARS W/O ABOOBACKER, KOORIMANNIL, VALIYAMANNIL HOUSE, MUTTIPPALAM, ANAKKAYAM AMSOM DESOM, ANAKKAYAM P.O., ERNAD TALUK, MALAPPURAM DISTRICT, PIN - 676509 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 609 of 2023 ``` ``` ..2.. ``` ## _**J U D G M E N T**_ **Dated this the 20[th] day of October, 2023** This Regular Second Appeal has been filed under Section 100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short). The appellant is the defendant in O.S. No. 503/2015 and the appellant in A.S. No. 02/2022. The appellant is aggrieved by the decree and judgment dated 09[th] December 2022 in O.S. No. 503/2015 on the files of the Munsiff’s Court, Manjeri as well as decree and judgment in A.S. No. 02/2022 dated 30[th] June 2023 on the files of the Subordinate Judges Court, Manjeri. The respondents herein are the plaintiffs in the above suit. 2. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents. 3. I shall refer the parties in this Regular Second Appeal as ‘ _plaintiff_ ’ and ‘ _defendants_ ’ for convenience. 4. The plaintiff filed this suit seeking perpetual injunction, ``` R.S.A. No. 609 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** raising contention that the plaint schedule property having an extent of 2.1 acres originally belonged to Manjeri Kovilakam Jenmam and Athimannil Pathumma obtained Kanam right over the same as per Kanam Document No. 861/1943. Later, it was transferred in the name of the plaintiffs as per the sale deed No. 256/1995 of Nilambur SRO. According to the plaintiffs, the plaintiffs had been holding title as well as the possession over the same and there was an attempt on the part of the defendant to encroach upon the same, and in order to prevent encroachment, the present suit was filed. 5. Defendant filed written statement and contended that the father of the defendant obtained Kanam right over 45 cents of property by virtue of Document No. 1356/1941 of Manjeri SRO and out of the same, by way of partition, he got 22.5 cents of property. The title and possession of the plaintiffs over the plaint schedule property were disputed. 6. Referring to the pleadings, the court below raised necessary issues and tried the case. PW1 examined and Exts. A1 ``` R.S.A. No. 609 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** to A4 series were marked on the side of the plaintiffs. DW1 examined and Exts. B1 to B6 series marked on the side of the defendant. The Advocate Commissioner got examined as CW1 and Exts. C1 to C4 series were marked. 7. The learned Munsiff appreciated the evidence and finally found that the apprehension of trespass upon the property, as identified the commissioner in was by Ext.C4(a) plan, established. Accordingly, perpetual injunction against trespass upon the plaint schedule property was granted. 8. Challenging the verdict of the learned Munsiff Judge, appeal was filed before the Sub Court, Manjeri, but the appellate court confirmed the verdict of the trial court, while dismissing the appeal. 9. While canvassing admission of this appeal, by raising substantial questions of law, the learned counsel for the appellant would submit that the property of the defendant was not measured even though four commissions were deputed. It was also pointed out that the decree and judgment impugned, if ``` R.S.A. No. 609 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** allowed to stand, the right of the defendant would be affected. 10. Addressing the arguments rendered by the learned counsel for the defendant, I have perused the available materials. It is discernible that plaintiffs are claiming title in respect of 2.1 acres of property in Survey No. 134/2/2, where the defendant would contend that his property having an extent of 22.5 cents lies in Survey No. 134/1. A copy of Ext.C4(a) plan and C4 series report have been placed by the learned counsel for the defendant for perusal. On verification, it is discernible that the property in Survey No. 134/2/2 in possession of the plaintiff coming 1 acre 10.2 cents is specifically located in Ext.C4(a) plan. Similarly, the property of the defendant having an extent of 36 cents in Survey No.134/1, also is located specifically in Ext.C4(a) plan. It is also reported that 0.25 cents which do form part of the property of the plaintiffs is also now in possession of the defendant. In the written statement, the specific plea raised by the defendant is that he got title over 22.5 cents and nothing more. But the commissioner located the property of the defendant as 36 cents ``` R.S.A. No. 609 of 2023 ``` ``` ..6.. ``` as against his claim 22.5 cents. It is relevant to note that during cross-examination of defendant as DW1, he categorically admitted that his property is available only in Survey No. 132/1 and he had no property in Survey No. 132/2/2. Thus, it appears that the commissioner rightly located the plaint schedule property in Survey No. 134/2/2 and in fact, no property of the defendant in Survey No. 132/1, is included in the plaint schedule description, which is confined to Survey No. 134/2/2 and not in Survey No. 134/1. 11. It is relevant to note that, in this matter, though the suit is on for simple injunction, four times commissioners were appointed and one survey plan obtained. Going by Ext. C4, the commissioner rightly located more extent of property in Survey No. 134/1 as the property of the defendant as against his title deed. Whereas the commissioner located the property of the plaintiff with specific mention that the same is 0.25 cents in shortage. In view of the matter, the grievance of the plaintiffs, in the matter of trespass upon the plaint schedule property ``` R.S.A. No. 609 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** specifically identified in Ext.C4(a) plan at the hands of the defendant is established by the evidence of Ext.PW1, as rightly found by the trial court as well as the appellate court and in fact, the defendant is not at all aggrieved in this matter, where his property is at present located as 36 cents as against 22.5 cents. In the said circumstances, concurrent verdicts entered into by the trial court granting prohibitory injunction, confirmed by the appellate court do not require any interference and no substantial question of law to be formulated to admit and maintain this second appeal. 12. Thus, in the instant case, the learned counsel for the appellant failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: “2. _**Power of Court to direct that the appeal be heard on the question formulated by it** .-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required_ ``` R.S.A. No. 609 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 13. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of ``` R.S.A. No. 609 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 14. In the decision in **Nazir Mohamed v. J. Kamala** and **2020 KHC 6507** : **AIR 2020 SC 4321** : **2020** Others reported in [ **(10) SCALE 168** ], the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. In_ _**Kondiba Dagadu Kadam** v._ _**Savitribai Sopan Gujar** , [_ _**(1999) 3 SCC 722** ], the Apex Court held that:_ _"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The_ ``` R.S.A. No. 609 of 2023 ``` ``` ..10.. ``` _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. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence." "It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that_ ``` R.S.A. No. 609 of 2023 ``` ``` ..11.. ``` _no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. 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 to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."_ _"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law._ ``` R.S.A. No. 609 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."_ _When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can_ ``` R.S.A. No. 609 of 2023 ``` ``` ..13.. ``` _not satisfy the mandate of S.100 of the CPC._ 15. In a latest decision of the Apex Court in Government of : Kerala v. Joseph, reported in [ **2023 (5) KHC 264 2023 (5) KLT 74 SC** ], it was held as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to_ _**Santosh Hazari** v._ _**Purushottam Tiwari,** [_ _**2001 (3) SCC 179** ] (three – Judge Bench) wherein this Court observed as follows: 12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial_ ``` R.S.A. No. 609 of 2023 ``` ``` ..14.. ``` _question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.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._ 16. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. 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 ``` R.S.A. No. 609 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** S.109 of the Code or Art.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. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. In view of the matter, no substantial question of law arises to be formulated in view of the mandate of Section 100 r/w Order 42 Rule 1 of the Civil Procedure Code to admit and adjudicate this appeal. Accordingly, this regular second appeal stands dismissed, without being admitted. All interlocutory application also stands dismissed. ## **Sd/-** ## **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```