Elizabeth Jessy and others v. Carmel Francy @ Carmali T.J, John P.P, Livi, and Francy Peter

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ``` RSA NO. 296 OF 2023 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.36/2019 OF SUB COURT,KOCHI AGAINST THE JUDGMENT AND DECREE IN O.S.NO.34/2014 OF ADDITIONAL MUNSIFF COURT, KOCHI ``` ## **`APPELLANTS/APPELLANTS IN A.S./DEFENDANTS IN O.S.:`** ``` 1ELIZABETH JESSY AGED 64 YEARS W/O LATE REMOLD, PANIKKASSERY HOUSE OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508 2RIJIN AGED 31 YEARS S/O. LATE REMOLD, PANIKKASSERY HOUSE OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508 3NIVIN REMOLD AGED 26 YEARS S/O. LATE REMOLD, PANIKKASSERY HOUSE OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508 BY ADVS. SAM ISAAC POTHIYIL S.SURAJA MUHAMMED SUHAIR C.A ABEY GEORGE HARISH V.S. RAMU SUBHASH ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS IN O.S.:`** ``` 1CARMEL FRANCY @CARMALI T.J W/O.FRANCY PETER,AGED 48 YEARS POOPADY HOUSE, OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508 2JOHN.P.P @JOHN PETER S/O PETER,AGED 53 YEARS POOPADY HOUSE, OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508 3LIVI W/O JOHN,AGED 46 YEARS POOPADY HOUSE, OCHANTHURUTHU P.O ``` ``` RSA NO. 296 OF 2023 2 ``` ``` PUTHUVYPPE VILLAGE, PIN - 682508 ``` ``` 4FRANCY PETER S/O PETER,AGED 46 YEARS POOPADY HOUSE, OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508 ``` ``` BY ADV P.VISHNU PRASAD ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 296 OF 2023 3 ``` ## **JUDGMENT** Dated this the 15[th] day of February, 2024 This Regular Second Appeal has been filed by the appellants against the judgment and decree in A.S.No.36/2019, dated 28.6.2022 on the files of the Sub Court, Kochi arose out of the judgment and decree in O.S.No.34/2014, dated 31.5.2019 on the files of the Munsiff Court, Kochi. 2. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents on admission. 3. I have perused the verdicts under challenge and also the copies of plaint and written statement including Ext.C3 series report and survey sketch. 4. I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendants’, for convenience. 5. In this matter, plaintiffs filed a suit seeking fixation of boundary, setting out a pathway for the defendants and for permanent prohibitory injunction. The specific case put up by the plaintiffs is that, 2[nd] plaintiff, 4[th] plaintiff and 1[st] defendant, ## **`RSA NO. 296 OF 2023 4`** are siblings and other parties are their wives and children. According to the plaintiffs, plaint A to F and H schedule properties belong to them and plaint I schedule is the way available to the defendants to reach the road on western side of the defendants’ property. 6. The defendants filed written statement and raised contention that, there is a pathway, having vehicular access through the middle portion of plaint E schedule property from time immemorial and the said way is having public access to the boat jetty, where fishing boats are halted. The prayer to set out plaint I schedule way for the use of the defendants, was opposed and prayed for dismissal of the suit. 7. The trial court recorded evidence. PW1 to PW4 were examined and Exts.A1 to A11 were marked on the side of the plaintiffs. DW1 was examined and Ext.B1 was marked on the side of the defendants. Exts.C1 to C3 also were marked. 8. On appreciation of evidence, the trial court decreed the suit as under: _“The suit is decreed with costs as follows:_ ``` RSA NO. 296 OF 2023 5 ``` _a) The boundaries of the plaint A to F, H and I schedule properties of the plaintiffs are fixed as identified in Ext.C3 report and C3 (a) survey sketch._ _b) The plaint I schedule property is hereby earmarked for the defendants to connect the plaint G schedule property and the bridge on the north-western corner of the plaint E schedule property for reaching the public road on the west._ _c) The defendants, their men and agents are hereby restrained by a decree of permanent prohibitory injunction from trespassing into the plaint A to F and H schedule properties, except the entry into the plaint I schedule pathway, from committing waste therein and from causing obstruction to the peaceful possession and enjoyment of the plaint A to F and H schedule properties of the plaintiffs and to the construction of compound wall or fence in the plaint A to F and H schedule properties by the plaintiffs, without obstructing or disturbing the usage of the plaint I schedule property by the defendants._ _d) Ext.C3 report and C3(a) survey sketch shall form part of the decree.”_ 9. Although appeal filed, appeal also was dismissed. ## **`RSA NO. 296 OF 2023 6`** 10. It is pointed out by the learned counsel for the defendants that, even though the defendants raised a contention in the written statement as to existence of a way through the middle of plaint E schedule having motorable access, as per Ext.C3 plan, plaint H schedule located is a way in existence and where the defendants perfected right of easement by prescription. Therefore, by setting out plaint ‘I’ schedule pathway, for the use of the defendants, the right of the defendants to use plaint ‘H’ schedule in no way to be interfered and therefore, the trial court as well as the appellate court went wrong in negating the said way. 11. Repelling this argument, the learned counsel for the plaintiffs argued that no substantial question of law arises in this appeal, where the trial court and the appellate court concurrently found against the contention raised by the defendants, while upholding the contention raised by the plaintiffs. 12. On perusal of Ext.C3 plan, the surveyor located properties covered by Exts.A1 to A8 sale deeds belong to the plaintiffs and the property belong to the defendants. As per ## **`RSA NO. 296 OF 2023 7`** Ext.C3, plot ‘G’ in the plan is the property covered by Ext.B1. Further, plots A, B1, B2, C, D, E, F, and H, are the properties covered by the title deed of the plaintiffs. Accordingly, plaintiffs provided ‘I’ schedule way to the defendants to reach on the western public road. 13. The learned counsel for the defendants submitted that the defendants have right of easement by prescription through plaint H schedule. On reading the copy of written statement placed by the learned counsel for the defendants, no contention seen raised insofar as plaint H schedule item is concerned and the limited contention in the form of vague allegations in the written statement is claim of way through the middle of E schedule property, which, in fact, not specifically located in Ext.C3. Thus, it appears that the defendants, who are claiming right over plaint H schedule property in no way pleaded any right over the same, even a whisper could be seen in the written statement as regards to plaint H schedule, as argued now. Therefore, claim of the plaintiffs, based on their title deeds, where the defendants did not have any contention as regards to plaint H schedule way, was proved and therefore, ``` RSA NO. 296 OF 2023 8 ``` the trial court as well as the appellate court rightly negatived the contentions raised by the defendants. Therefore, no substantial question of law arises to admit this appeal. 14. In this case, in fact, the learned counsel for the appellants 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 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 ``` RSA NO. 296 OF 2023 9 ``` 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 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_ ## **`RSA NO. 296 OF 2023 10`** _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 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 ``` RSA NO. 296 OF 2023 11 ``` 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. 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 ``` RSA NO. 296 OF 2023 12 ``` 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