Antony Prakash v. Prakasham, Rani and Arogyam Joyson

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 22[ND] DAY OF NOVEMBER 2023 / 1ST** **AGRAHAYANA, 1945** **RSA NO. 652 OF 2023** **ARISING OUT OF THE JUDGMENT DATED 26.9.2017 IN OS** **633/2015 OF PRINCIPAL MUNSIFF COURT, PALAKKAD ARISING OUT THE JUDGMENT DATED 10.7.2023 IN AS 12/2018 OF ADDITIONAL DISTRICT COURT-IV, PALAKKAD APPELLANT:** ANTONY PRAKASH AGED 34 YEARS S/O LATE ANTHONISWAMY, VANIYA CHRISTIAN, KALLAMBULLIYAN HOUSE, CANANPIRIVU, PUDUSSERRY EAST VILLAGE, PAMPAMPALLAM POST, PALAKKAD DIST-, PIN - 678621 BY ADVS. SAJAN VARGHEESE K. LIJU. M.P ## **RESPONDENTS:** 1 PRAKASHAM AGED 77 YEARS W/O LATE PAVIL KURUSSU, ERUMAMKALAM, KOZHIPPARA, CHITTUR TALUK, NOW RESIDING AT ERUTHEMPATHY, ERUTHEMPATHY POST, KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DIST-, PIN - 678555 2 RANI AGED 53 YEARS W/O POLRAJ, D/O LATE PAVIL KURUSSU, ERUMAMKALAM, KOZHIPPARA, CHITTUR TALUK, NOW RESIDING AT CHUNNAMBYKAL ROAD, VELANTHAVALAM POST, VADAKARAPPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DIST-., PIN - 678557 3 AROGYAM JOYSON AGED 49 YEARS S/O LATE ANJALI MARY, KALLANGAR HOUSE, **RSA NO.652/2023** **2** PUMP HOUSE STREET, ERUTHEMPATHY POST, KOZHINJAMPARA, CHITTUR TALUK, PALAKKAD DIST-., PIN - 678555 BY ADV.SRI.R.UMASANKAR, RESPONDENTS THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.652/2023** **3** ## **JUDGMENT** _Dated this the 22[nd] day of November, 2023_ The plaintiff in O.S.No.633 of 2015 on the files of the Principal Munsiff Court, Palakkad, is the appellant in the second appeal filed under Section 100 read with Order XLII and Rule 1 of the Code of Civil Procedure. The respondents herein are defendants 1 and 3, LRs of original defendant No.2. 2. Heard the learned counsel for the appellant as well as the respondents on admission. Perused the judgments under challenge. 3. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendant’ hereinafter for convenience. 4. The plaintiff herein filed a suit seeking relief of permanent prohibitory injunction restraining the defendants from obstructing peaceful possession over the plaint schedule property by the plaintiff and his father Anthonyswamy. According to the plaintiff, the plaint schedule property is in joint possession and enjoyment of **RSA NO.652/2023** **4** the plaintiff and his father Anthonyswamy and the plaintiff obtained right over the property by birth. Apprehending trespass at the instance of the defendants, the present suit was filed. 5. The defendants filed a detailed written statement in O.S.No.633 of 2015 contending that the description of the plaint schedule property is wrong. It has been specifically contended that the plaint schedule property is part and parcel of the property delivered to one Pavil Kurisu, who is the husband of the first defendant and father of the other defendants, pursuant proceedings in E.P.No.213 of 1993 in O.S.No.49 of 1990 on the files of the Sub Court, Palakkad. The contentions raised by defendants 1 and 3 in paragraph Nos.5 and 6 of the written statement as such have been reproduced as under:- _“5)The description of the plaint schedule property is wrong. The property which has been wrongly described in the schedule was part of the subject matter in E.P.213/1993 in O.S 49/90 before the Hon'ble Sub Court, Palakkad. The aforesaid suit O.S 49/90 was filed by one Hridayamary, W/o Antonyraj against the plaintiff's father Anthonyswamy for recovery of money from him and the said suit was decreed against him. Thereafter, the decree-holder filed E.P.213/1993 before this Hon'ble Court for the_ **RSA NO.652/2023** **5** _sale of the property and in the public sale conducted by the Hon'ble Court in EP 213/1993 on 27.7.1994, the husband of the 1" defendant and the father of the other defendants Pavil Kurisu bid the property. Subsequently, the sale was confirmed and the sale certificate was issued by the Court in favour of Pavil Kurisu and the property was delivered by the Amin to the Plaintiff as per the order of the execution court. Thereafter, Pavil Kurisu was in possession of the property. After the sale was confirmed in favour of Pavil Kurisu, Anthonyswamy instigated his sister Sampoornam to file another suit before the Sub Court as O.S 126/1995 claiming right over the property which was also dismissed by the Hon'ble Court. Subsequently, on 23.9.2008, Anthonyswamy and his wife tried to trespass into the property with an intention to reduce the property into their possession illegally. In view of this, Pavil Kurisu had to file a suit for permanent prohibitory injunction against Anthonyswamy and his wife Madalamary as O.S 678/2008 before this Hon'ble Court. In the said suit, the contention of Anthonyswamy was that he was under treatment for mental illness for the past five years and he was ignorant about the previous proceeding in E.P 213/93 in O.S 49/90 before the Sub Court and the property has not been delivered to Pavil Kurisu and that Anthonyswamy is in possession of the property. It was also claimed that Purchase Certificate was issued to Antonyswamy by the Land Tribunal subsequent to the delivery of property to Pavil Kurisu. All these contentions were rejected by this Hon'ble Court and a decree for permanent injunction was passed in favor of Pavil Kurisu. Against the said judgment and decree, Anthonyswamy and his wife filed appeal before the District Court as A.S 233 / 2010. Pending appeal, Pavil Kurisu died and the defendants herein were impleaded as his legal representatives. The aforesaid appeal was also_ **RSA NO.652/2023** **6** _dismissed on 23.1.2015, thereby confirming the decision of this Hon'ble court._ _6) After the dismissal of the appeal, Anthonyswamy and his wife have come up with the above suit by instigating their son raising false stories. The plaintiff have had absolutely no right, title or interest over the petition schedule property at any point of time. The property which was the subject matter in the earlier proceedings has been delivered to Pavil Kurisu through the process of court. The suit is frivolous and vexatious. There is no cause of action for the plaintiff to file the suit. There was no need for these defendants to threaten the plaintiff in any manner as alleged in the plaint. The cause of action alleged is false to the core.”_ 6. The trial court recorded evidence in this matter with reference to the issues raised. PW1 was examined and Exts.A1 to A6 were marked on the side of the plaintiff. No oral evidence let in by the defendants. Exts.B1 to B3 were marked on the side of the defendants. 7. Finally, the suit was dismissed holding that the plaintiff failed to prove his possession over the plaint schedule property and the case put forward by the defendants regarding their title over the plaint schedule property, in view of the court sale, was found in favour of them. Though appeal filed before the appellate court, the same also was dismissed confirming the judgment of the **RSA NO.652/2023** **7** trial court. 8. The learned counsel for the plaintiff argued at length to convince this Court that the plaint schedule property is one obtained by the plaintiff and his father Anthonyswamy. In this connection, he has placed copy of the purchase certificate issued to Anthonyswamy by the Land Tribunal, which was marked as Ext.A2 by the trial court subject to proof and also copy of SM proceedings of the Land Tribunal obtained under the RTA Act. The same is marked as Ext.A3 in evidence subject to proof. 9. Even though those documents are marked subject to proof, the appellate court relied on the same while dismissing the appeal. Since those documents are admissible in evidence even without further proof, the same can be relied on to decide the case of the plaintiff. 10. It appears that as per Ext.A2 purchase certificate, the property in the name of Anthonyswamy, the father of the plaintiff, is having an extent of 3 Acres and 35½ cents. It is interesting to note that the case of the defendants is that there was a suit in between one Hridayamary and the father of the plaintiff as O.S.No.49 of 1990 before the **RSA NO.652/2023** **8** Munsiff Court, Palakkad, whereby a money decree was passed which was put in execution. Being a bonafide purchaser in court action, Pavil Kurisu, auctioned the property and accordingly, the court issued sale certificate in his favour and based on the same, the property was duly delivered as per Ext.B3 delivery report by the Amin dated 31.03.1997. The further case of the defendants is that even after getting title and possession as per Ext.B3, there was attempt to interfere with the possession of the defendants and eventually the sister of Anthonyswamy filed O.S.No.126 of 1995 claiming right over the property covered by Ext.B3 and the same was dismissed. Thereafter, Anthonyswamy and his wife tried to trespass upon the property covered by Ext.B3 and accordingly, Pavil Kurisu filed another suit as O.S.No.678 of 2008 before the Munsiff Court, Palakkad, and a prohibitory injunction protecting possession of the property covered by Ext.B3 was passed and the same was confirmed in appeal filed before the District Court as per verdict in A.S.No.233 of 2010. 11. It is surprising to note that the plaintiff's case is that he is having a right over the property by birth, whereas **RSA NO.652/2023** **9** Exts.A2 and A3 would show that the plaint schedule item having an extent of 93 cents form part of Exts.A2 and A3 for which patta was issued in the name of Anthonyswamy, who is none other than the judgment debtor in E.P.No.213 of 1993 arose out of O.S.No.49 of 1990, which terminated in Ext.B3 delivery in favour of Pavil Kurisu, the predecessor of the defendants. No doubt, the property of Anthonyswamy was sold in auction and the defendants' predecessor got possession of the same through process of court on the basis of Ext.B3 delivery report, after issuance of the sale certificate. 12. In this connection, Section 65 of C.P.C. assumes significance. Section 65 of C.P.C. provides thus : _“Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute.”_ Thus as per Section 65 of C.P.C., the purchaser's title in relation to a property sold in execution of a decree is absolute. However, it appears that soon after the failure of Antonyswamy in O.S.No.49 of 1990, the sister of **RSA NO.652/2023** **10** Anthonyswamy filed a suit which was dismissed. Later, Pavil Kurisu was forced to file O.S.No.678 of 2008 before the Munsiff Court, Palakkad and in the said suit, Anthonyswamy and his wife were the defendants. They were restrained from trespassing upon the property covered by Ext.B3 and the said decree is in force. 13. Though it is argued by the learned counsel for the plaintiff that the plaint schedule property is in the joint possession and enjoyment of the plaintiff and his father, Anthonyswamy, the said contention cannot be believed for a moment. That is to say, Anthonyswamy and his wife, who are none other than the parents of the plaintiff suffered decree of injunction against trespass upon the property covered by Ext.B3 and the decree is in force. In such situation, the case of the plaintiff that the plaintiff and his father are jointly possessing the said property is an utter falsehood. 14. To put more vividly, it is to be noted that the property covered by Ext.B3 is one Acre evidently belonged to Anthonyswamy which was put on court sale in E.P.No.213 of 1993 in O.S.No.49 of 1990. Anthonyswamy and his wife **RSA NO.652/2023** **11** and their men were restrained by the judgment and decree in O.S.No.678 of 2008 as confirmed in A.S.No.233 of 2010 and the certified copy of the said decree and judgments are Exts.B1 and B2. Therefore, after Ext.B3 and in view of Exts.B1 and B2, the possession of the property covered by Ext.B3 is at the hands of the defendants and therefore, possession claimed by the plaintiff being the son of Anthonyswamy cannot be believed for a moment. For the said reason alone, the suit must fail. 15. That apart, vigilantly the plaintiff not even filed a petition to appoint a commission to establish that the property described in the plaint schedule is a property in exclusion of Ext.B3 in any manner. In the above illustrated circumstances, it appears that the plaintiff and his father colluded together and filed this suit with fraudulent intention to defeat the defendants title and possession over the property covered by Ext.B3. Having noticed these circumstances, the trial court dismissed the suit and the same was confirmed by the appellate court. In this view of the matter, there is no substantial question of law to be formulated to admit and maintain the second appeal. **RSA NO.652/2023** **12** 16. In order to admit and maintain the Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 read with Section 100 of C.P.C. 17. In this case, the learned counsel for the defendant 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.”_ 18. 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. **RSA NO.652/2023** **13** (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. 19. In the decision reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v.**_ ## _**J. Kamala and Others** ,_ 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_ **RSA NO.652/2023** **14** _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 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_ **RSA NO.652/2023** **15** _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 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_ **RSA NO.652/2023** **16** _Appeal can not satisfy the mandate of S. 100 of the CPC._ 20. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala 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. 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 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._ 21. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal **RSA NO.652/2023** **17** 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 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. 22. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this **RSA NO.652/2023** **18** appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. Sd/- **A. BADHARUDEEN JUDGE** csl