Augustine v. Jancy Thomas and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023/3RD KARTHIKA, 1945** **RSA NO. 639 OF 2023** **AGAINST JUDGMENT AND DECREE DATED 09.06.2023 IN AS 47/2020 OF DISTRICT COURT & SESSIONS COURT, KOTTAYAM AGAINST THE ORDER OF FINAL DECREE PASSED IN I.A.NO.459/2009 IN OS 262/2006 OF MUNSIFF COURT, VAIKOM** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** **AUGUSTINE AGED 70 YEARS S/O VARKEY, RESIDING AT AKKAMATTATHIL HOUSE, KURAVILANGADU KARA, KURAVILANGADU VILLAGE, KURAVILANGADU P.O., MEENACHIL TALUK, KOTTAYAM DIST., PIN - 686633** **BY ADVS. MANUEL KACHIRAMATTAM MERRY GEORGE** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS 2 AND 3 AND PLAINTIFFS:** **1 JANCY THOMAS, AGED 64 YEARS D/O VARKEY, RESIDING AT HOUSE NO. 29/2016 A, TAIKOODAM, VYTTILA, ERNAKULAM, PIN : 682019, FROM MONADATHU HOUSE, UDAYANAPURAM KARA, VADAKKEMURI VILLAGE, VAIKOM TALUK, KOTTAYAM DIST., PIN - 686143 2 JOSE A.V. AGED 59 YEARS S/O VARKEY, RESIDING AT AKKAMATTATHIL HOUSE, NJEEZHOOR KARA, NJEEZHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DIST, PIN - 686612 3 ALEYKUTTY VARKEY AGED 91 YEARS W/O VARKEY, RESIDING AT AKKAMATTATHIL HOUSE, NJEEZHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DIST., PIN - 686612** **2** ## **RSA NO. 639 OF 2023** **4 SHERLY FELIX, AGED 56 YEARS D/O VARKEY, RESIDING AT AKKAMATTATHIL HOUSE, NJEEZHOOR KARA, NJEEZHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DIST., PIN - 686612** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 639 OF 2023** **3** ## **JUDGMENT** Dated this the 25[th] day of October, 2023 This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging decree and judgment in A.S.No.47/2020 on the files of the District Court, Kottayam dated 09.06.2023 arising out of the final decree application (hereinafter referred to as 'FDIA', for short) No.459/2009 in O.S.No.262/2006 on the files of the Munsiff Court, Vaikkom dated 11.03.2019. The appellant herein is the first defendant/first respondent in FDIA No.459/2006 and the appellant in A.S.No.47/2020. The respondents herein are defendants 2 and 3 and plaintiffs in the original suit. 2. Heard the learned counsel for the appellant. Perused the judgments under challenge. 3. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendant' for convenience. 4. In this matter, suit for partition was filed and **RSA NO. 639 OF 2023** **4** accordingly, preliminary decree of partition was passed on 27.06.2008. As per the preliminary decree, 2/6[th] shares allotted to the first plaintiff and 1/6[th] share allotted to the second plaintiff. Pursuant to the preliminary decree, plaintiffs 1 and 2 filed FDIA, for which the first respondent filed objection. 5. The learned Munsiff tried the matter. PW1 examined and Exhibits A1 to A8 marked on the side of the plaintiffs. DW 1 examined and Commission Reports Exts.C1, C1(a), C1(b), C1(c), C2 and C3 were also marked on the side of the defendant. Thereafter, the trial court given emphasis to Ext.C1 series Commission Report and finally, granted final decree of partition as under: “In the result, the final decree is passed as follows:- - (1) Plot nos. 1, 3 and 4 measuring out 79 cents 319 Sq.lings in extent more specifically shown in Ext.C1(b) plan was set apart to the share of the 1[st] plaintiff. - (2) Plot no.5 measuring out 41.710 in extent is allotted to the share of the 2[nd] plaintiff. - (3) Plot no.6 measuring out in extent 13.270 cents more specifically shown in Ext.C1(b) plan is set **RSA NO. 639 OF 2023** **5** apart for the common access to the plaintiffs are well as the defendant in respect of their property. (4) Property in Ext.C1(a) plan and plot no.2, 7 and B in Ext.C1(b) are allotted to the share of the defendants 1 to 3 together. (5) The total value of the plaint schedule property 1 to 3 are estimated as `23,69.505. Share of 1[st] plaintiff and 2[nd] plaintiff and defendants are valued `8,62,881 `4,52,575 and `10,54,023 respectively. It is charged upon their share. 1[st] and 2[nd] plaintiff shall pay `73,049 and `57,659 to the defendants as owelty and it is charged upon their shares. - (6) Defendant shall bear their cost of the plaintiff. - (7) The share of profit allotted to the plaintiffs is as follows - (a) The 1[st] plaintiff is entitled to get `60,000 per annum from the date of suit till 29.07.2013 the 1[st] defendant and she is entitled to get `54,000 per annum from 29.07.2013 till the 1[st] plaintiff get actual possession of her share of properties from the 1[st] defendant. (b) The 2[nd] plaintiff is entitled to get `30,000 per annum as her pendente lite share and future share of profits from the date of suit till 29.07.2013 from the 1[st] defendant and she is also entitled to get `27,000 per annum from **RSA NO. 639 OF 2023** **6** 29.07.2013 till she get actual possession of her share from the 1[st] defendant. (8) Pendente lite profits and future share of profits entitled by the plaintiff shall create a charge upon the share of the 1[st] defendant over the plaint schedule properties. - (9) Exts.C1,C1(a),C1(b), C1(c) form part of decree.” 4. Though appeal was filed before the appellate court, the appellate court also dismissed the appeal. 5. In this matter, the learned counsel for the first defendant/appellant submitted that the first defendant is aggrieved in the matter of allotment of shares of profits and future profits, relying on the Commission Reports available. According to the learned counsel for the first defendant/appellant, the Commission Reports available and relied on by the trial court as well as the appellate court are insufficient to grant decree in relation to the allotment of shares of profits and future profits. It is fairly conceded by the learned counsel for the first defendant/appellant that the first defendant did not file any objection to the Commission Reports or plan in **RSA NO. 639 OF 2023** **7** the matter of allotment of shares of profits and future profits. But according to the learned counsel for the first defendant/appellant, as per the ratio of the decision of this Court in **Thankamani v. Vasanthi and Others** reported in **2020 (4) KHC 578 : 2020(5) KLT 129 : 2020(4) KLJ 369** , non-filing of objection to the Commission Report by itself is not a reason to believe the Commission Report. The learned counsel for the appellant read out paragraph No.11 of the judgment, wherein this Court observed that it is incumbent upon the Court to ensure that the Commission Report mentions the details necessary to elucidate the issue in dispute, for which the Commission was appointed, irrespective of whether the parties have filed any objection or not to the Commission Report. 6. I have perused the judgments of the trial court as well as the appellate court. In this matter, challenging the final decree passed by the trial court and the appellate court on an earlier occasion, a second appeal was filed before this Court and this Court remanded the matter back to the trial court for fresh **RSA NO. 639 OF 2023** **8** consideration. It was thereafter, Exts.C2 and C3 reports were obtained. Obviously, the first defendant/appellant did not file any objection to Exts.C2 and C3 reports. The trial court observed in paragraph 8 of the order that the trial court could not find any patent error in the calculation of annual profits mentioned in Ext.C2 report by the Commissioner and therefore, the same is acceptable in toto. Ext.C3 Commission Report is pertaining to cut and removal of rubber trees. Though the appellant placed this challenge before the appellate court, the appellate court also found that no objection raised to Exts.C2 and C3 reports by the appellant and the oral testimony of DW1, the appellant alone could not yield to disbelieve Exts.C2 and C3 reports. In this matter, a suit for partition was filed in the year 2006, after passing preliminary decree, where an application for passing final decree filed in the year 2009. This is the second occasion, this matter reached up to this Court by way of second appeal. 7. In this case, the trial court as well as the appellate court concurrently found that Exts.C1 to C3 reports, for which no **RSA NO. 639 OF 2023** **9** objection raised by the appellant, are believable to be acted upon and accordingly, final decree was passed, inclusive of shares of profits and future profits, acting on the Commission Report. On perusal of the available materials, I could not find any illegality committed by the trial court or the appellate court in any manner. When the Court is of the opinion that the commission reports are sufficient to address the matter in dispute, the ratio in **Thankamani** 's case ( _supra)_ has no application, though it has been given much emphasis by the appellant. 8. Moreover, in this case, the learned counsel for the first 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_ **RSA NO. 639 OF 2023** **10** _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.”_ 9. 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 **RSA NO. 639 OF 2023** **11** 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. 10. 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. 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_ **RSA NO. 639 OF 2023** **12** _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_ **RSA NO. 639 OF 2023** **13** _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 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_ **RSA NO. 639 OF 2023** **14** _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._ ## 11. 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_ **RSA NO. 639 OF 2023** **15** _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._ 12. 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 **RSA NO. 639 OF 2023** **16** 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. 13. 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 **RSA NO. 639 OF 2023** **17** same is liable to be dismissed. In the result, this appeal is dismissed without being admitted. 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