Ahammed Khan v. S. Yousuf and others (RSA No. 202 of 2015)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 6[TH] DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945 RSA NO. 202 OF 2015** **AGAINST THE DECREE & JUDGMENT DATED 20.02.2007 IN OS 288/2000 OF MUNSIFF COURT, MANJERI** **DECREE & JUDGMENT DATED 31.10.2014 IN AS 30/2007 OF DISTRICT COURT,** ## **MANJERI** ## **APPELLANT/SUPPLEMENTAL 4TH RESPONDENT/THIRD PARTY:** AHAMMED KHAN, AGED 65 YEARS, S/O. MOHAMMED ABDUL KADER, KUTTIVILAHAM VEEDU, KAMALESWARAM, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.A.CHANDRA BABU T.KRISHNANUNNI (SR.)(K/280/1973) **RESPONDENTS/1st RESPONDENT, 2 nd APPELLANT, SUPPLEMENTAL APPELLANTS 3 TO 10 (R3 TO R10 IN RSA.202/2015 – LEGAL HEIRS OF 1ST APPELLANT IN AS.30/2007), 3RD RESPONDENT, LEGAL HEIRS OF 2ND RESPONDENT IN AS.30/2007 (R12 TO R14 IN RSA.202/2015)/PLAINTIFF, 2ND DEFENDANT, LEGAL HEIRS OF 1ST DEFENDANT IN OS.288/2000 (R3 TO R10 IN RSA.202/2015), SUPPLEMENTAL 4TH DEFENDANT, LEGAL HEIRS OF 3RD DEFENDANT IN O.S.NO.288/2000 (R12 TO R14 IN RSA.202/2015:** 1 S.YOUSUF, AGED 56 YEARS S/O. SHAHUL HAMEED, 20/108, MOSQUE ROAD, COLACHEL P.O., KANYAKUMARI DISTRICT, TAMIL NADU. 2 SHAHUL HAMEED, AGED 54 YEARS S/O. HUSSAIN, BOMBAY GENERAL STORES, POOJAPPURA P.O., THIRUVANANTHAPURAM DISTRICT. 3 KHADEEJA BEEVI, AGED 55 YEARS W/O. LATE MOHAMMED HALITH, RESIDING AT S.M MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, RSA.No.202/2015 2 NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 4 SHAHUL HAMEED, AGED 40 YEARS S/O. LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 5 AYSHABEEVI, AGED 38 YEARS D/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 6 EMADDHUDHEEN, AGED 36 YEARS, S/O. LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 7 BETHERNISHA AGED 34 YEARS D/O. LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 8 MARJANAFATHIMA AGED 32 YEARS D/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 9 YADUTHMILLATH AGED 24 YEARS S/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 10 NABEELA AGED 21 YEARS D/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL, THEKKAKULAM LANE, OPPOSITE SPINNING MILL, BALARAMAPURAM P.O., KOTTAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 11 M.NARAYANANKUTTY AGED 65 YEARS S/O. MATTADADAKSHAYANIAMMA, KAVANOORAMSOM, IRIVETTY DESOM, ERNAKULAM TALUK, MALAPPURAM DISTRICT. 12 SREE DEVI AGED 62 YEARS W/O. LATE K.V.BALASANKARAN NAIR, RESIDING AT MANJRI RSA.No.202/2015 3 AMSOM, ARUKIZHAYA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 13 UDHAYA KUMAR AGED 34 YEARS S/O. LATE K.V.BALASANKARAN NAIR, RESIDING AT MANJRI AMSOM, ARUKIZHAYA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. 14 BINDHU AGED 37 YEARS D/O. LATE K.V.BALASANKARAN NAIR, RESIDING AT MANJRI AMSOM, ARUKIZHAYA DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADVS. FOR R1 SRI.G.S.REGHUNATH FOR R2-R10 SRI SAJU J PANICKER FOR R2-R10 KURIAN K JOSE(K/001510/2019) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.01.2024, THE COURT ON 06.02.2024 DELIVERED THE FOLLOWING: RSA.No.202/2015 4 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _R.S.A No.202 of 2015_ _================================ Dated this the 6th day of February, 2024_ ## _**J U D G M E N T**_ The appellant has preferred this Second Appeal under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure. This appeal arises out of the decree and judgment in O.S.No.288/2000 on the files of the Munsiff Court, Manjeri dated 20.02.2007, which were confirmed by the District Judge, Manjeri, as per decree and judgment in A.S.No.30/2007 dated 31.10.2014. The appellant herein is one Ahammed Khan and the respondents are the plaintiff and other parties. 2. Heard the learned counsel for the appellant and the learned counsel appearing for the 1st respondent in detail. Perused the verdicts under challenge and the lower court records made available. 3. I shall refer the parties in this appeal as to RSA.No.202/2015 5 their status before the trial court, as `plaintiff’ and `defendants’ hereafter for easy reference. 4. S.Yousuf, S/o.Shahul Hameed, the plaintiff, had filed the present Suit seeking partition of the plaint schedule property. According to the plaintiff, the plaint schedule property was jointly purchased as per assignment deed No.3625/1995 of S.R.O, Manjeri, in the name of the plaintiff by name Yousuf, P.Mohammed Halith and Shahul Hameed, defendants 1 and 2. While so, by impersonating the plaintiff, defendants 1 and 2 executed sale deed in favour of another man, but the plaintiff is not the executant of the said sale deed and thus the same would not bind the plaintiff. Therefore, the plaintiff sought his 1/3 share in the plaint schedule property to be partitioned. 5. Defendants 1 and 2 filed written statements disputing the identity of the plaintiff and asserted that the person named as `Yousuf' in the sale deed No.3625/1995 is another person and he had transferred the property. Therefore, the plaintiff would not get share as contended. 6. The trial court recorded evidence. PW1 was RSA.No.202/2015 6 examined and Exts.A1 to A10 were marked on the side of the plaintiff. Exts.B1 and B2 were marked on the side of the defendants. Ext.C1 was marked as court exhibit. 7. On appreciation of the evidence, the trial court found that the plaintiff would get 1/3 share out of the plaint schedule property. Accordingly, preliminary decree of partition was passed. Even though the verdict of the Munsiff Court was challenged before the District Court, Manjeri, the appeal also was dismissed. 8. The learned Senior Counsel appearing for Ahammed Khan, for and on behalf of the defendants, submitted that the defendants emphatically denied the fact that the name Yousuf mentioned in Ext.A1 assignment deed No.3625/1995, S/o.Shahul Hameed, TC 17/1888, Poojappura Ward, Aramada Village, Thiruvananthapuram Taluk, is not the plaintiff. It is submitted further that the person named as `Yousuf' in Ext.A1 executed Ext.B1 assignment deed and transferred his right. Therefore, the claim of 1/3 share at the instance of the plaintiff herein would not succeed and the trial court as well as the appellate court wrongly appreciated the evidence to find the plaintiff as the person mentioned in Ext.A1. RSA.No.202/2015 7 The learned Senior Counsel also submitted that the trial court as well as the appellate court given much reliance on Ext.C1 commission report and the evidence of the commissioner to hold the identity of the plaintiff as the person named in Ext.A1. It is pointed out by the learned Senior Counsel further that Commissioner is not empowered to hold an enquiry as to the identity of a person and in that view of the matter, Ext.C1 is inadmissible in evidence. It is also submitted that apart from Ext.C1, no positive evidence forthcoming to hold that plaintiff is the person named as Yousuf in Ext.A1. Accordingly, the learned Senior Counsel pressed for admission of this matter raising substantial questions of law. 9. Refuting the contentions raised by the learned Senior Counsel for the appellant for and on behalf of the defendants, it is submitted by the learned counsel for the plaintiff that even though some observations in Ext.C1 also taken note of by the trial court as well as the appellate court while deciding the identity of the plaintiff as the person who purchased the property along with the defendants, as per Ext.A1, thrust was given to the evidence of DW1 and Ext.A7 by the courts below to hold that plaintiff is the person RSA.No.202/2015 8 named in Ext.A1 as `Yousuf'. along with Ext.A7 to hold so. Therefore, his claim for partition was rightly allowed by the trial court and confirmed by the appellate court and the said concurrent verdicts do not require any interference. Further no substantial question of law also arises for consideration, to admit this Second Appeal. 10. To be on the crux of this matter, the dispute is centred on a simple question as to whether Yousuf, S/o.Shahul Hameed, named in Ext.A1 assignment deed is the plaintiff by name Yousuf herein, so as to grant 1/3 right over the plaint schedule property covered by Ext.A1. It is relevant to note that the specific case of the plaintiff is that without the knowledge and consent of the plaintiff, Ext.B1 was created by impersonating him and the same has no legal effect. In the instant case, a very pertinent aspect to be noted is that PW1, the plaintiff, given evidence that the plaint schedule property was purchased while the plaintiff was doing business along with defendants 1 and 2 and the property was purchased at the time when the plaintiff resided along with the 1st defendant in House No.TC 17/1888-10 named as Ram Nivas in RSA.No.202/2015 9 Poojappura. DW1 examined in this case is the 2nd defendant Shahul Hameed. He filed a chief affidavit and deposed in tune with the contention in the written statements. During cross examination, DW1 admitted Ext.A7 document No.2842/1995, whereby one Khadeeja Beevi, W/o.Khalid, Fathima Beevi, W/o.Yousuf residing in T.C. 17/1888 and Ummusalma Beevi, W/o.Shahul Hameed purchased property. DW1 admitted that in Ext.A7, the second party Fathima Beevi is none other than the wife of Yousuf, who is the plaintiff herein. Thus the admitted case of DW1 is that as per Ext.A7 executed on 30.08.1995, property was purchased in the joint names of the wives of the plaintiff and defendants. In fact, as per Ext.A7, property was purchased in the names of the wives of the plaintiff and the defendants on 30.08.1995 and 15 days before the plaint schedule property was purchased in the joint names of the plaintiff and defendants, as per Ext.A1. During re-examination, DW1 admitted that the address of the wife of Yousuf is similar, ie.TC 17/18888, as shown in Ext.A1. Thus without much ado, it is established from the evidence given by DW1 that the address of the wife of the plaintiff shown in Ext.A7 is similar to the address of the RSA.No.202/2015 10 plaintiff shown in Ext.A1. It is true that the courts below given reliance on the evidence of the Commissioner and his report also to hold that Yousuf, who purchased the property as per Ext.A1, is the plaintiff. 11. That apart, the evidence of DW2, who alleged to have introduced the person by name Yousuf while executing Ext.B1 would show that he is not in a position to tender the whereabouts and details of the person by name Yousuf, who executed Ext.B1. Thus the evidence available would go to show that defendants 1 and 2 impersonated the plaintiff to execute Ext.B1 and the person in Ext.A1 is none other than the plaintiff herein. If so, the trial court as well as the appellate court rightly found that the plaintiff is entitled to get 1/3 share in the plaint schedule property on the strength of Ext.A1. 12. In fact no substantial question of law raised by the learned counsel for the appellant to admit and maintain this Second Appeal. 13. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High RSA.No.202/2015 11 Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 14. In the instant case, the learned counsel for the appellant failed to raise 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 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 defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 15. 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 RSA.No.202/2015 12 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 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. 16. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ 17. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala**_ RSA.No.202/2015 13 ## _**v. Joseph**_ , 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._ 18. 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 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 RSA.No.202/2015 14 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. 19. In view of the elaborate discussion, no substantial question of law arises in this Second Appeal to be decided by admitting the same. In the result, this appeal is found to be meritless and the same is dismissed without being admitted with cost of the plaintiff throughout the proceedings. All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_