A.M. ABOOBACKER v. Plaintiffs 1-22 and Addl.R 2-26, RSA NO. 634 OF 2023, Regular Second Appeal

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 RSA NO. 634 OF 2023 ``` ``` AGAINST THE JUDGMENT IN A.S.NO.66/2018 OF ADDITIONAL DISTRICT COURT ``` ``` - VII, ERNAKULAM AGAINST THE JUDGMENT IN O.S.NO.844/2009 OF II ADDITIONAL SUB COURT,ERNAKULAM ``` ## **`APPELLANT/APPELLANT/7TH DEFENDANT IN THE SUIT:`** ``` A.M. ABOOBACKER AGED 65 YEARS S/O.LATE A.K.MOIDEEN HAJI, AGED 65, ANJIKATH HOUSE, KAKKANAD, THRIKKAKARA, ERNAKULAM, PIN - 682030 BY ADVS. K.JAYAKUMAR (SR.) SADER E.REAZ V.S.AFSAL KHAN ``` ## **`- RESPONDENTS/RESPONDENTS 1 TO 11 & ADDL.R 2 TO 26 IN A.S/PLAINTIFFS 1`** ## **`- - & 2/D 1 TO 6 & ADDL.D 8 TO 26 IN OS:`** ``` 1SUMATHI D/O.VIRONI THEVAN, AGED 46, KANNANKERI, KAKKANAD, NOW RESIDING AT KOTTAKUNNIL HOUSE, KANNANKERI, KAKKANAD, PIN - 682037 2DEVAKI W/O.LATE VIRONI THEVAN, AGED 72, KANNANKERI, KAKKANAD, NOW RESIDING AT KOTTAKUNNIL HOUSE, KANNANKERI, KAKKANAD, PIN - 682037 3KUTTAPPAN S/O.KUNJAYAPPAN, AGED 63, KANNANKERI HOUSE @ KANNANKERI PARAMBIL, KAKKANAD, THRIKKAKARA VILLAGE, ERNAKULAM, PIN - 682037 4BABU S/O.KUNJAYAPPAN, AGED 38, KANNANKERI HOUSE @ KANNANKERI PARAMBIL, KAKKANAD, THRIKKAKARA VILLAGE, ERNAKULAM, PIN - 682037 ``` ``` RSA NO. 634 OF 2023 2 ``` ``` 5KUMARAN S/O.KODIYAN, AGED 32, KANNANKERI HOUSE @ KANNANKERI PARAMBIL, KAKKANAD, THRIKKAKARA VILLAGE, ERNAKULAM, PIN - 682037 ``` - `6 VASU S/O.KODIYAN, AGED 42, KANNANKERI HOUSE @ KANNANKERI PARAMBIL, KAKKANAD, THRIKKAKARA VILLAGE, ERNAKULAM, PIN - 682037` ``` 7BASHEER AGED 46, POKKATTIL HOUSE, VENNALA, ERNAKULAM, PIN - 682028 ``` ``` 8K.C. GOPALAN AGED 51, S/O. LATE THORI, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM,, PIN - 682037 ``` ``` 9K.C. AYYAPPAN AGED 46, S/O. LATE THORI, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 10K.C. KUMARI AGED 39, D/O. LATE THORI, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 11K.C.LEELA AGED 34, D/O. LATE THORI, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 12GIREESH AGED 26, S/O. LATE KARTHIKEYAN, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 13HAREESH AGED 24, S/O. LATE KARTHIKEYAN, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 14DEVAKI W/O.LATE KODIYAN, AGED 74, KANNANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM,, PIN - 682037 15THANKAPPAN S/O.LATE KODIYAN, AGED 58, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 16SUKUMARAN ``` ``` RSA NO. 634 OF 2023 3 ``` ``` S/O.LATE KODIYAN, AGED 54, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 17VASU S/O.LATE KODIYAN, AGED 52, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 18VALLI D/O.LATE KODIYAN, AGED 58, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 19ALLI D/O.LATE KODIYAN, AGED 58, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 20KUMARAN S/O.LATE KODIYAN, AGED 50, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 21SHAILAJA D/O.LATE KODIYAN, AGED 46, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 22SANTHOSH S/O.LATE KODIYAN, AGED 43, KANNANANKERI, CHITTETHUKARA, KAKKANAD, ERNAKULAM, PIN - 682037 R1 & R2 BY ADV P.P.JACOB ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 634 OF 2023 4 ``` ## **CR** ## **JUDGMENT** Dated this the 6[th] day of December, 2023 This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in A.S.No.66/2018, dated 14.7.2023 on the files of the Additional District Court - VII, Ernakulam, arose out of the judgment and decree in O.S.No.844/2009, dated 16.2.2018 on the files of the Sub Court, Ernakulam. 2. Heard the learned counsel for the appellant, who is the 7[th] defendant in the above suit as well as the learned counsel for the respondents 1 and 2, on admission. Though other respondents were served as per law, they did not appear. 3. I shall refer the parties in this appeal as 'plaintiffs' and the '7[th] defendant', for convenience. 4. Originally, the suit was one filed by the plaintiffs to declare that sale deed No.1399/2004 of Thrikkakara SRO, is not ``` RSA NO. 634 OF 2023 5 ``` binding on the plaintiffs as regards their right, title and possession over 1.85 Ares of properties, mentioned as Item No.2 in the said sale deed, which is the plaint schedule property. Recovery of possession of the same also was sought for. 5. The 7[th] defendant resisted the contention and claimed absolute title insofar as Item No.2 covered by the sale deed No.1399/2004, whereby, the 7[th] defendant purchased property from defendants 1 to 6. 6. The trial court ventured the matter. PW1 was examined and Exts.A1 to A7 were marked on the side of the plaintiffs. DW1 was examined on the side of the defendants. Exts.C1 and C1(a) were marked as court exhibits. Finally, the court below granted decree as under: - _“In the result, suit is partly decreed as follows:-_ - _1) It is declared that sale deed No.1399 of 2004 of Thrikkakara is not binding on the plaintiffs as regards their right, title and possession over 1.85 ares of property mentioned as item No.2 in the said sale_ ``` RSA NO. 634 OF 2023 6 ``` _deed which is the property scheduled in the plaint._ _2) Plaintiffs are entitled to recover possession over plaint schedule property which is marked with letter "I" and shown in orange colour in Ext.C1(a) sketch._ - _3) Ext.C1(a) will form part of the decree. 4) There is no order as to costs.”_ 7. Even though, appeal was filed, the appellate court also concurred the said finding. 8. At the time of admission, the learned counsel for the 7[th] defendant submitted that, as per Ext.A5 sale deed, two schedules incorporated. As per the first schedule, the property comes to 14.40 and as per the second schedule, the property is 1.85 Ares. Earlier, suit, as O.S.No.696/2009 was filed before the Sub Court, Ernakulam, for partition of Item No.1 in Ext.A5 sale deed and to set aside Ext.A5. The matter went upto this Court vide R.S.A.No.189/2016. As per judgment, dated 20.6.2016 in R.S.A.No.189/2016, this Court found that the courts below went ``` RSA NO. 634 OF 2023 7 ``` wrong in declaring the sale deed as such null and void and accordingly, the preliminary decree got modified as under: _“R.S.A No.189 of 2016 is allowed and preliminary decree is modified as follows._ - _1) It is declared that sale deed No.1399 of 2004 of Trikkakkara SRO is not binding on the plaintiffs or their ¼ share in the plaint schedule property._ - _2) The plaint schedule property will be divided by metes and bounds into 4._ - _3) The plaintiffs are entitled to one share and defendants 1 to 6 ¾ share._ - _4) The plaintiffs will be put in separate possession of their share._ - _5) Out of the share allotted to defendants 1 to 6, the property covered by the sale deed executed by them in favour of the 7[th] defendant will be set_ ``` RSA NO. 634 OF 2023 8 ``` _apart for him to the extent possible._ _6) If the ¾ share allotted to defendants 1 to 6 is less than 14.49 ares the 7[th] defendant will not be entitled to a greater extent._ _7) The suit is adjourned sine die.”_ 9. In this appeal, the specific point argued by the learned counsel for the 7[th] defendant that, in O.S.No.696/2009, the plaintiffs did not raise claim over Item No.2 in Ext.A5 and therefore, the present suit is hit by Order II Rule 2 of the C.P.C. 10. Per contra, the learned counsel for the plaintiffs submitted that in order to sustain bar under Order II Rule 2 of the C.P.C., the bar should have been pleaded and proved. In support of this contention, the learned counsel placed reliance on the decision of the Apex Court in **Dalip Singh** v. **Mehar Singh Rathee and Others** , reported in **[(2004) 7 Supreme Court Cases 650]** . In the said judgment, in paragraph No.12, it was held as under: ``` RSA NO. 634 OF 2023 9 ``` _“_ _**12.** Counsel for the appellant strenuously contended that the suit was barred under Order 23 Rule 1 CPC as Respondent 1 had withdrawn the suit filed by him for permanent injunction and filed the suit for specific performance without seeking permission of the court. According to him, since the second suit was filed without obtaining the leave of the court the same was barred under Order 23 Rule 1 CPC. We do not find any substance in this plea. The plea that the suit was barred under Order 23 Rule 1 CPC was not taken in the written statement and no issue was framed to that efect. This plea was raised for the frst time before the frst appellate court which was negatived. Plea that the suit was barred under Order 23 Rule 1 CPC was not taken before the High Court. Under the circumstances the appellant cannot be permitted to take this plea before us. Contention of the learned counsel for the appellant that the suit filed by Respondent 1 was barred under Order 2 Rule 2 CPC is not sustainable on two counts. Firstly, the plea of applicability of Order 2 Rule 2 CPC and the subsequent suit being barred was not taken by the appellant in his written statement filed in response to the notice of the suit nor was any issue framed on the point. The sine qua non for applicability of Order 2 Rule 2 CPC is that a person entitled to more than one_ ``` RSA NO. 634 OF 2023 10 ``` _relief in respect of the same cause of action has omitted to sue for some relief without the leave of the court. When an objection regarding bar to the filing of the suit under Order 2 Rule 2 CPC is taken, it is essential for the court to know what exactly was the cause of action which was alleged in the previous suit in order that it might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject-matter of the previous suit. As the plea had not been raised in the written statement and no issue framed on this point, no opportunity was provided to Respondent 1 to lead evidence to rebut the same. In the absence of pleadings and proof of identity of cause of action, the appellant could not be permitted to raise the plea of bar of Order 2 Rule 2 CPC. The High Court had gone into merits as well and held that the two suits filed by Respondent 1 were not based on the same cause of action. We need not examine this on merit as we have held that in the absence of pleadings or the issue regarding the bar of Order 2 Rule 2 CPC in filing the suit the appellant cannot be permitted to raise such a plea.”_ While answering the query, as regards the essentials to establish a bar under Order II Rule 2 of the C.P.C., the following ``` RSA NO. 634 OF 2023 11 ``` ingredients must be established; (1) the said bar should be pleaded. (2) on the said plea, the court must raise an issue calling upon the parties to prove/defend the said plea and (3) on proof bar, in view of pleadings supported by evidence under Order II Rule 2 of the C.P.C., the court can dismiss the suit finding the bar under Order II Rule 2 of the C.P.C. If such plea is raised before the appellate court for the first time without pleading and proof thereof, such plea cannot be considered by the appellate court. 11. Coming to the case at hand, on perusal of the written statement and additional written statement filed by the 7[th] defendant, even remotely, such plea could not be found. To the contrary, in paragraph No.7 of the written statement filed by the 7[th] defendant, he raised contention that he was not aware of the suit O.S.No.696/2009. Thus, it appears that no pleadings to substantiate the bar under Order II Rule 2 could be found in the written statement. No issue raised in this regard and no evidence also adduced, even copy of the plaint in ``` RSA NO. 634 OF 2023 12 ``` O.S.No.696/2009, not produced before the trial court. In view of the matter, this contention raised before this Court for the first time, cannot be appreciated at all. For the said reason, this argument found to be meritless. 12. Coming to the crux of the matter, what was done in R.S.A.No.189/2016 is that, Ext.A5 was declared as not binding on the plaintiffs or their 1/4[th] share therein. According to the learned counsel for the plaintiffs, R.S.A.No.189/2016 discussed only right upon Item No.1 in the schedule. But, the decree in R.S.A.No.189/2016, would go to show that declaration in respect of Ext.A5, in as much as the 1/4[th] share of the plaintiffs in the property covered by Ext.A5, was granted. 13. Viewing that the judgment in R.S.A.No.189/2016 is not one binding insofar as Item No.2 in Ext.A5 (though the same is not as such), in this matter, the plaintiffs purchased the entire property covered by Ext.A5 from defendants 1 to 6, where the plaintiffs also were sharers. So, Ext.A5 sale deed would not confer any title upon the 7[th] defendant in relation to the ``` RSA NO. 634 OF 2023 13 ``` property entitled by the plaintiffs and if so, Ext.A5 to be treated as a sale deed, which would confer title upon the 7[th] defendant in relation to the shares entitled by defendants 1 to 6 and nothing more. Therefore, Ext.A5 has no binding effect on the plaintiffs, as rightly found by the courts below. Holding so, in this matter, the trial court granted decree and the same was upheld by the appellate court. 14. In this case, the learned counsel for the appellant/7[th] defendant failed to convince this Court on 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.”_ ``` RSA NO. 634 OF 2023 14 ``` 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 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 ``` RSA NO. 634 OF 2023 15 ``` that the case involves such question. 16. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 17. 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, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established_ ``` RSA NO. 634 OF 2023 16 ``` _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 substantial question of law of ``` RSA NO. 634 OF 2023 17 ``` 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 above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- ## **A. BADHARUDEEN JUDGE** Bb