Dileep Kumar S and Vineetha v Gomathi Ammal

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 26[TH] DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945 RSA NO. 143 OF 2023 ``` ``` AGAINST THE JUDGMENT DATED 30.11.2022 IN AS NO.62/2022 OF ADDITIONAL DISTRICT COURT - III, THIRUVANANTHAPURAM AGAINST THE JUDGMENT DATED 7.3.2022 IN OS NO.536/2020 OF ADDITIONAL MUNSIFF COURT-II, THIRUVANANTHAPURAM ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** ``` 1DILEEP KUMAR.S AGED 43 YEARS S/O.SHANMUGHAM CHETTIYAR, TC 20/2847, GOMATHINIVAS, MANACAUD VILLAGE, KARAMANA P.O, THIRUVANANTHAPURAM, PIN - 695002 2VINEETHA AGED 36 YEARS W/O DILEEP KUMAR, TC 20/2847, GOMATHINIVAS, MANACAUD VILLAGE, KARAMANA P.O, THIRUVANANTHAPURAM, PIN - 695002 BY ADVS. LIJU. M.P REVATHI R. KURUP ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` GOMATHI AMMAL AGED 73 YEARS W/O SHANMUGHAM CHETTIYAR, GOMATHINIVAS, TC 20/2847, KARAMANA,RIVER VIEW ROAD, MANACAUD VILLAGE, KARAMANA P.O,, THIRUVANANTHAPURAM, PIN - 695002 BY ADVS. G.RAJEEV REJITH RAJENDRAN ASWANI P.S. S.AJITH KUMAR NAVEEN RADHAKRISHNAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 143 OF 2023 2 ``` ## **JUDGMENT** Dated this the 26[th] day of October, 2023 This Regular Second Appeal has been filed under Section 100 and Order XLII Rules 1 and 2 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter). 2. The appellants are the defendants in O.S.No.536/2020 on the files of the Additional Munsiff Court-II, Thiruvananthapuram. The appellants impugn judgment and decree in O.S.No.536/2020, dated 7.3.2022 and judgment and decree in A.S.No.62/2022, dated 30.11.2022 on the files of the Additional District Court-III, Thiruvananthapuram. 3. The respondent herein is the plaintiff, who is none other than the mother of the 1[st] defendant/1[st] appellant, and an age old lady of 73. 4. Heard the learned counsel for the appellants as well as the respondent. 5. I shall refer the parties in this appeal as 'plaintiff' and defendants' for convenience. 6. In this matter, according to the plaintiff, the plaintiff is ``` RSA NO. 143 OF 2023 3 ``` the absolute owner in possession of 06.23 Ares of property, comprised in Block No.E-8, Re.Sy.No.31/4 (Old Sy.No.3171/1331 and 3171/134-1) of Manacaud Village, wherein a two storied building, bearing No.20/2847 (ground floor) and building No.20/2847(1) (first floor), and another old building with GI roofing, bearing TC 20/284, are situated. According to the plaintiff, she obtained the same by virtue of Sale Deeds No.1248/1973 and 1510/1980 of Chalai SRO. The plaintiff had earlier executed Will Deed No.83/III/2007 in respect of a part of plaint A schedule property in favour of the 1[st] defendant and the same was cancelled by the plaintiff on 31.01.2011, as per Will cancellation deed No.38/III/2011. At the same time, another Will deed No.110/III/2019 was executed in favour of the 1[st] defendant. Further, the plaintiff’s daughter was given 11 cents of landed property at Thaliyal within Manacaud Village, by way of settlement deed, which was sold by her. 7. The sum and substance of the claim of the plaintiff is that, the defendants have no matter of right over the plaint A and B schedule items and therefore, the defendants are liable to be evicted. ``` RSA NO. 143 OF 2023 4 ``` 8. The crux of the contention raised by the defendants is that, the plaint A and B schedule properties are allotted in favour of the 1[st] defendant and Will deed No.283/III/2014 is a document created by fraud and undue influence of the plaintiff and her husband. Filing of O.S.No.948/2011, seeking decree of permanent prohibitory injunction from dispossessing them from the plaint schedule items and its dismissal also were highlighted. The dismissal of A.S.No.177/2018 arose therefrom, also was pointed out. 9. The learned Munsiff ventured the matter. PW1 and PW2 were examined and Exts.A1 to A14(b) were marked on the side of the plaintiff. DW1 to DW7 were examined and Exts.B1 to B12 were marked on the side of the defendants. Exts.C1 and C1(a) were marked as court exhibits. The learned Munsiff considered the evidence in detail and finally granted decree as under: - _“In the result, suit is decreed without cost as follows:_ _1. The defendants are directed to vacate from the plaint B schedule property and to hand over the possession to the plaintiff._ ``` RSA NO. 143 OF 2023 5 ``` _2. The defendants, their successors and persons claim under from them are restrained from trespassing into the plaint A schedule property and from committing any waste therein._ _3. No order as to cost.”_ 10. Though appeal filed before the appellate court, the same also dismissed and the decree and judgment of the trial court was confirmed. 11. At the time of admission, the learned counsel for the defendants submitted that the 1[st] defendant is the son of the plaintiff and in view of strange relationship between them, there were litigations. According to the learned counsel for the defendants, since the plaintiff admitted execution of a document in favour of the 1[st] defendant, transferring the right over him in respect of the plaint schedule items, non-production of the said document is fatal and the same would go to the root of the matter. Accordingly, it is submitted that the judgment and decree of the trial court as well as the appellate court, are liable to be interfered by formulating the same, as a substantial question of law. ``` RSA NO. 143 OF 2023 6 ``` 12. Repelling this contention, the learned counsel for the plaintiff submitted that, the plaintiff and her husband worked hard and earned sufficient money. Using the same, landed properties also were purchased. Thereafter, with bona fide intention to give shares to the plaintiff's children, she executed certain documents inclusive of one Will deed, in favour of the 1[st] defendant in respect of the plaint schedule items. Subsequently, the said Will deed was cancelled, since the 1[st] defendant was so cruel towards the mother. It is submitted further that the 1[st] defendant brutally manhandled the mother and she suffered serious injuries including fractures. It is submitted that Exts.A7 to A14 series are documents relating to criminal cases and complaints lodged by the mother periodically, when the 1[st] defendant assaulted her. 13. Eventhough it is submitted by the learned counsel for the defendants that, the title of the plaint schedule items transferred in the name of the 1[st] defendant by a settlement deed, the specific case of the plaintiff is that, she executed a Will deed and subsequently, the same was cancelled. Apart from the admission of the plaintiff that she had executed a Will deed in ``` RSA NO. 143 OF 2023 7 ``` favour of the 1[st] defendant, and it was cancelled subsequently, no records available to prove that the 1[st] defendant, at any point of time, got title over the plaint schedule properties, though he has been residing in the plaint B schedule building, along with his family, being the son of the plaintiff. Since the title of the plaintiff is proved by Exts.A1 and A2, no evidence let in to hold that the 1[st] defendant obtained any title over the plaint schedule items. Therefore, the suit filed by the plaintiff to get vacant possession of the same from the possession of the defendants, was rightly allowed by the trial court and the said verdict was confirmed by the appellate court. The said concurrent verdicts do not require any interference in this second appeal. 14. In this case, the learned counsel for the appellants miserably 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,_ ## **`RSA NO. 143 OF 2023 8`** _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.”_ 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 ``` RSA NO. 143 OF 2023 9 ``` 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. 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. 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_ ``` RSA NO. 143 OF 2023 10 ``` _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 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_ ``` RSA NO. 143 OF 2023 11 ``` _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."_ ``` RSA NO. 143 OF 2023 12 ``` _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._ 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 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_ ``` RSA NO. 143 OF 2023 13 ``` _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._ 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 ``` RSA NO. 143 OF 2023 14 ``` “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. 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 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** Bb