Biju v. Mohammed Salim and Nisha

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 RSA NO. 43 OF 2024 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 31.10.2023 IN A.S.NO.123/2011 ON THE FILES OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE-IV, PALAKKAD AROSE FROM THE DECREE AND JUDGMENT DATED 31.01.2011 IN O.S.NO.605/2009 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, PALAKKAD ``` ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` BIJU AGED 38 YEARS S/O.THANKAMMA, 3/559, ANAND NAGAR, KANNADI, NOW RESIDING AT 36/663, K.P.KESAVA MENON COLONY, AKATHETHARA AMSOM, PALAKKAD, PIN - 678008 BY ADVS. KRISHNADAS P. NAIR K.L.SREEKALA HARIDAS P.NAIR M.A.VINOD M.RAJESH KUMAR K.G.MANOJ KUMAR PRASOON.K.P ANU PRABHAKAR RADHAKRISHNAN K.S. ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1MOHAMMED SALIM AGED ABOUT 41 YEARS, S/O.ABOOBACKER, SHAMSHAJ MANZIL, NEELIKKATTIL, OLAVAKKODE, KAVILPAD AMSOM, PALAKKAD TALUK, PIN - 678002 ``` ``` 2NISHA, AGED ABOUT 25 YEARS, W/O.MOHAMMED SALIM, SHAMSHAJ MANZIL, NEELIKKATTIL, OLAVAKKODE, KAVILPAD AMSOM, PALAKKAD TALUK, PIN - 678002 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 43 of 2024 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 31[st] day of January, 2024** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.123 of 2011 dated 31.10.2023 on the files of the Court of the Addl District Judge-IV, Palakkad arose from the decree and judgment in O.S. No.605 of 2009 dated 31.01.2011 on the files of the Principal Munsiff Court, Palakkad. The appellant is the plaintiff and respondents are 1st and 2nd defendants in O.S. No.605 of 2009. 2. Heard the learned counsel for the appellant, on admission. Perused the relevant materials including copies of Exts.C1 and C1(a) commission report and rough sketch placed by the learned counsel for the appellant and the verdicts under challenge. 3. I shall refer the parties in this appeal with reference to their status before the trial court. 4. In this matter, suit for prohibitory injunction was ``` R.S.A. No. 43 of 2024 ``` ``` 3 ``` filed by the plaintiff, claiming right over plaint B schedule pathway, on the assertion that the same is a way provided in the title deed of the plaintiff as well as the title deed of the defendants. According to the plaintiff, plaintiff and defendants have the right of use the said pathway. But, the defendants constructed a compound wall on the western side of the plaint B schedule pathway obstructing the plaintiff from using the same. Hence, the plaintiff filed the suit and sought for injunction. 5. Defendants filed written statement and resisted the suit. It was contended that the 1st defendant had purchased property having an extent of 7.5 cents from the mother of the plaintiff. It was contended further that the way having 5 meter width provided to the plaintiff is on the northern side of his property. The defendants denied the allegation of trespass and also denied that they had made any attempts to trespass upon any portion of the said pathway to obstruct the use of the pathway and they had attempted to construct the compound wall in front of their property, where the plaintiff has no right. 6. The trial court recorded evidence and tried the ``` R.S.A. No. 43 of 2024 ``` ``` 4 ``` matter after addressing rival contentions. PW1 examined and Exts.A1 to A3 marked on the side of the plaintiff. DW1 examined and Ext.B1 marked on the side of the defendants. Ext.C1 and C1(a) marked as court exhibits. 7. The trial court while adjudicating the dispute, after recording evidence and on hearing both sides, found that the plaintiff is not entitled to get prohibitory injunction restraining the defendants from constructing the compound wall. Accordingly, the suit was dismissed. 8. Though, appeal was filed before the Appellate Court, vide A.S. No.123/2011, the Appellate Court also reappreciated the evidence and concurred the finding of the trial court. 9. In this matter, the learned Munsiff rightly found that as per Ext.A1, the pathway provided for the ingress and egress to the plaint A schedule property is the pathway lying on the west of the plaintiff’s property and not plaint B schedule item. The learned Munsiff also found that, though the plaintiff raised a contention that the properties of the plaintiff and defendants originally belonged to the mother of ``` R.S.A. No. 43 of 2024 ``` ``` 5 ``` the plaintiff and plaint B schedule is the common way provided for all the property owners, no pleadings set forth in this regard or no evidence adduced to that effect. 10. Even though, the learned counsel for the plaintiff attempted to establish existence of plaint B schedule way with right of common usage, before this Court, a bare perusal of Ext.C1(a) sketch along with the description in Ext.C1 would show that the way available to the property of the plaintiff is one lying on the western side of the plaint A schedule property reaches upto the Municipal road. Thus, the contention raised by the plaintiff that plaint B schedule way has been provided for the plaintiff and defendants through the western side of the property of the defendant failed to be established before the trial court and the Appellate Court. In fact, no materials available to substantiate the contentions raised by the plaintiff. Thus, the concurrent verdicts of the trial court and Appellate Court do not require any interference at the hands of this Court. 11. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular second appeal. Order XLII ``` R.S.A. No. 43 of 2024 ``` ``` 6 ``` ## Rule 2 of CPC 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. ” 12. Section 100 of CPC 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 ``` R.S.A. No. 43 of 2024 ``` ``` 7 ``` 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 stipulates 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. 13. 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 ``` R.S.A. No. 43 of 2024 ``` ``` 8 ``` ## **Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].** 14. 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 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. 15. 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 CPC, 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' ``` R.S.A. No. 43 of 2024 ``` ``` 9 ``` 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 CPC must be complied to admit and maintain a second appeal. 16. In the instant case, it appears that the concurrent verdicts entered into by the trail court as well as by the Appellate Court, based on the facts and evidence, are found to be in order. Therefore, the same does not require any interference at the hands of this Court. 17. In this matter, no substantial question of law ``` R.S.A. No. 43 of 2024 ``` ``` 10 ``` arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. 18. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications pending in this regular second appeal stand dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK