AKBAR v. ALATHEL PATHUKUTTY AND OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 8[TH] DAY OF NOVEMBER 2023/17TH KARTHIKA, 1945** ## **RSA NO. 839 OF 2021** **AGAINST THE JUDGMENT DATED 08.07.2021 IN AS NO.8/2019 ON THE FILES OF THE SUB COURT, CHAVAKKAD** **AGAINST THE FINAL DECREE DATED 03.12.2018 IN I.A.NO.5765/2014 IN O.S.NO.458/1990 ON THE FILES OF THE MUNSIFF COURT, CHAVAKKAD** ## **APPELLANT/APPELLANT/3RD DEFENDANT:** **AKBAR AGED 53 YEARS S/O. ALTHAF MUHAMMAD, PUNNAYURKULAM AMSOM, CHAVAKKAD, PIN-679561.** **BY ADVS. ANEESH K.R THRESIA ANU P.J NISHAD NARAYANAN** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS, D1, D2 AND D4 TO D15:** **1 ALATHEL PATHUKUTTY AGED 74 YEARS D/O. VAMBAYIL VEETIL KUNJIMAMU, PUNNAYURKULAM VILLAGE, EDAKARA DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** **2 ALATHAYIL AMINU @ KUNJIMOL, AGED 67 YEARS D/O. VAMBAYIL VEETIL KUNJIMAMU, PUNNAYURKULAM VILLAGE, EDAKARA DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** **3 AISAKUTTY, AGED 77 YEARS W/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** **4 ASHARAF, AGED 57 YEARS S/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM,** **RSA NO. 839 OF 2021** **2** ## **CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **5 IQBAL,** **AGED 51 YEARS S/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **6 KADEEJA,** **AGED 49 YEARS D/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **7 ABOOBACKER,** **AGED 46 YEARS** **S/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **8 SHAMSUDEEN,** **AGED 44 YEARS** **S/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **9 HUSSAIN, AGED 39 YEARS** **S/O. ALATHEL MUHAMMED, PUNNAYURKULAM AMSOM, DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** **10 JASEENA, AGED 29 YEARS W/O. MANDALAMKUNNATH NABEEL, KADIKKAD AMSOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **11 SAFIYA,** **AGED 62 YEARS** **W/O. KADAVANTHODE ABOOBACKER, VAZHAPULLI DESOM, PERAKAM AMSOM, TRISSUR, PIN-679561.** ## **12 PULLIKKAPARAMBIL HAWA UMMA,** **AGED 47 YEARS** **W/O. KARUTHAKKA HAMEED, KADIKKAD AMSOM,** **RSA NO. 839 OF 2021** **3** ## **CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **13 ALATHAYIL KAMARU, AGED 60 YEARS S/O.MUTHU, AKALAD DESOM, PUNNAYUR AMSOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **14 ALATHAYIL ALI, AGED 42 YEARS S/O. SULAIMAN, AKALAD DESOM, PUNNAYUR AMSOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **15 MUSLIM VEETIL SHAHEER, AGED 29 YEARS** **S/O. KANDAMBATH KUNJUMON, PALAYUR DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **16 MUHAMMAD FIROSE, AGED 42 YEARS S/O. MENASSERY RAHMAN, KADIKKAD AMSOM, EDAKKARA DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** - **17 FASEELA, AGED 31 YEARS W/O. MENASSERY FIROSE, KADIKKAD AMSOM, EDAKKARA DESOM, CHAVAKKAD TALUK, TRISSUR, PIN-679561.** **BY ADVS. P.S.SUJETH (CAVEATOR) M.R.REENA (CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 839 OF 2021** **4** ## **JUDGMENT** Dated this the 8[th] day of November, 2023 This regular second appeal has been filed under Section 100 of the Civil Procedure Code, 1908 (hereinafter referred to as 'CPC', for convenience), challenging judgment and decree dated 08.07.2021 in A.S.No.8/2019 on the files of Sub Court, Chavakkad, arose out of Final Decree Application (hereinafter referred to as 'FDIA', for convenience) No.5765/2014 in O.S.No.458/1990 on the files of the Munsiff Court, Chavakkad. The 3[rd] respondent in FDIA No.5765/2014 is the appellant. Other parties are the respondents. 2. Heard the learned counsel for the appellant on admission. Perused the lower court records. 3. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendant' for convenience. 4. In this matter, originally suit was filed, seeking partition, wherein preliminary decree of partition was passed. **RSA NO. 839 OF 2021** **5** The same was challenged in appeal before the Principal Sub Court, Thrissur, vide A.S.No.26/1996. Then, the matter reached this Court by way of second appeal. As per judgment in S.A.No.642/2000 dated 19.03.2014, this Court also concurred the finding of the trial court regarding partition of the plaint schedule property. 5. Thereafter, FDIA No.5765/2014 filed by supplemental plaintiffs 2 and 3. Respondents 9, 11, 12, 14, and 15 remained _ex parte_ in the FDIA. None of them filed any written objection to the final decree application. Thereafter, the trial court appointed Commissioner and Surveyor to identify the property. Accordingly, Exts.C1 report and C1(a) plan were produced. A formal objection seen filed by the 8th respondent alone, which was found against by the trial court. The appellant herein is the third respondent and he did not raise any objection to the final decree proceedings or filed any objection to the commission report, in any manner. Thereafter, the trial court found that Exts.C1 and C1(a) rightly identified **RSA NO. 839 OF 2021** **6** and located the shares and accordingly, final decree of partition was passed as under: “In the result, a final decree is passed in terms of the preliminary decrees based on Ext.C1 and C1(a) report and plan as given under: - (i) The property having a total extent of 114.865 cents (98.853 + 16.012) shown in Ext.C1 (a) plan with white colour is allotted to the petitioners/supplemental plaintiffs. - (ii) The property having a total extent of 114.865 cents (103.87 + 10.988) shown in Ext.C1(a) plan with blue colour is allotted to the respondents/defendant No.1 to 8. - (iii) The petitioners/supplemental plaintiff are also entitled to get the owelty amount of Rs.8,27,850/- from respondent Nos.1 to 8. - (iv) Costs shall come out of the estate. - (v) Get engossed the final decree on requisite non judicial stamp paper.” 5. Though appeal filed before the Sub Court challenging the above verdict, the same was also dismissed. 6. At the time of admission, the learned counsel for the defendant attempted to find out irregularities in the commission report, in a case, where the appellant either filed an objection to the final proceedings or filed any objection to **RSA NO. 839 OF 2021** **7** the commission report and he accepted the same without any objection. Thus, the regular second appeal is absolutely meritless and does not involve any substantial question of law. Thus, the same deserves to be dismissed. 7. Moreover, in this case, the learned counsel for the defendant/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 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.”_ 8. 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 **RSA NO. 839 OF 2021** **8** 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 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. 9. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321** **RSA NO. 839 OF 2021** **9** ## **: 2020 (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 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_ **RSA NO. 839 OF 2021** **10** _S.100 of the Code of Civil Procedure. It has further been found in a number of cases that 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. 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_ **RSA NO. 839 OF 2021** **11** _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 not satisfy the mandate of S.100 of the CPC._ ## 10. 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:_ **RSA NO. 839 OF 2021** **12** _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 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._ 11. 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 **RSA NO. 839 OF 2021** **13** 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 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. 12. At the time of admission, nothing suggested in this matter in the form of substantial question of law to admit the second appeal. Therefore, this second appeal cannot be admitted without formulating substantial question of law and the same is liable to be dismissed. In the result, this appeal is dismissed without being admitted. **RSA NO. 839 OF 2021** **14** All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/-** **A. BADHARUDEEN JUDGE** nkr