EX.SA NO. 8 OF 2023

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ``` EX.SA NO. 8 OF 2023 ``` ``` AGAINST THE JUDGMENT IN AS NO. 19/2021 OF SUB COURT, PERUMBAVOOR EA NOS.117/2021 & 118/2021 IN E.P.NO.19/2020 IN O.S.NO.91/2012 OF ``` ## **`MUNSIFF COURT, PERUMBAVOOR`** ## **`APPELLANT/APPELLANT/CLAIM PETITIONER IN E.P.NO.19/2020:`** ``` NAJEEB AGED 43 YEARS VATTAPARAMBIL KOLLAMKUDY HOUSE, VENGOLA KARA, ARACKAPPADY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683562 BY ADVS. NAVEEN THOMAS BASIL KURIAKOSE TITTO THOMAS S.VAISAKH R.REVIKUMAR ``` ## **`RESPONDENTS/RESPONDENTS/DECREE HOLDER & JUDGMENT DEBTOR:`** ``` 1ASIYA UMMA AGED 75 YEARS, W/O.BAVA VATTAPARAMBIL KOLLAMKUDY HOUSE,VENGOLA KARA, ARACKAPPADY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683562 2MUHAMMED, AGED 76 YEARS S/O. MAKKAR, VATTAPARAMBIL KOLLAMKUDY HOUSE,VENGOLA KARA, ARACKAPPADY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, PIN - 683562 R1 BY SRI.V.RAJENDRAN (CAVEATOR) ``` ``` THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` EX.SA NO. 8 OF 2023 2 ``` ## **JUDGMENT** Dated this the 15[th] day of September, 2023 This Execution Second Appeal has been filed under Section 100 r/w Order XXI Rule 58(4) of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) and the appellant is the petitioner in E.A.No.117/2021 in E.P.No.19/2020 in O.S.No.91/2012 on the files of the Munsiff Court, Perumbavoor. The respondents herein are the defendants and plaintiff in the above suit. 2. Adv.Sri.V.Rajendran (Caveator) appears for the 1[st] respondent. 3. Heard the learned counsel for the appellant and the learned counsel for the 1[st] respondent, on admission. 4. To be on the crux of this matter, originally, the 2[nd] respondent herein, who is none other than the father of the appellant herein, filed O.S.No.91/2012 before the Munsiff Court, Perumbavoor, contending that he was the title holder in possession of property, having an extent of 09.71 Ares in old ``` EX.SA NO. 8 OF 2023 3 ``` Sy.No.442/1 and Re-Sy.No.86/5 in Block No.28, Arakkappady Village. Accordingly, Muhammed (the plaintiff in the suit) sought the relief of fixation of the northern boundary of the said property, which separates the property of the plaintiff and the 1[st] defendant. 5. Eventhough the defendants resisted the suit, on analysis of the evidence tendered, the learned Munsiff, as per decree and judgment, dated 30.1.2015, granted the relief sought for, acting on Ext.C3(a) plan. 6. Eventhough decree was granted in favour of the plaintiff, he did not execute the decree. But the 1[st] defendant put the decree in execution. At this juncture, the appellant herein had filed claim petition, contending that the plaint schedule property in O.S.No.91/2012 is the property, which was transferred by his father Sri.Muhammed, in his favour, as per sale deed No.2728/2005, even before filing of the suit. It was contended further that, since the claim petitioner is not a party to the above suit, decree and judgment in O.S.No.91/2012 did not bind him or his property and therefore, the claim petitioner opposed execution of the ``` EX.SA NO. 8 OF 2023 4 ``` decree involving his own property. 7. The learned Munsiff adjudicated the claim petition and dismissed the same, as per common order, dated 26.10.2021 in E.A.Nos.117/2021 and 118/2021 in E.P.No.19/2020 in O.S.No.91/2012. 8. Assailing the said order, the claimant filed A.S.No.19/2021 before the Sub Court, Perumbavoor. The learned Sub Judge also dismissed the appeal and concurred the finding of the learned Munsiff. 9. Now, the learned counsel for the appellant zealously argued, relying on sale deed No.2728/2005, executed by Muhammed in favour of the claimant (father in favour of his son) that the property covered by the decree is the property of the appellant and not the property of the father and as such, the decree could not be executed in respect of the property of the appellant. He also placed copies of the sale deed, title deed of the claimant, the copy of exchange deed, copy of the plan relied on by the trial court and relevant materials for considering the matter. The same includes document No.2817/1979, whereby, Muhammed asserted title over the ``` EX.SA NO. 8 OF 2023 5 ``` suit property and also partition deed No.2527/1975. 10. In order to ascertain the question as to whether the decree schedule property in O.S.No.91/2012 described as old Sy.No.442/1 and Re-Sy.No.86/5 in Block No.28, Arakkappady Village, is the property, covered by sale deed No.2728/2005 (i.e., the title deed of the appellant), I have perused the derivation of title shown therein. It has been narrated that the property obtained by Muhammed, as per partition deed No.2527/1975, was transferred in the name of the appellant/Najeeb. In this context, it has to be noted that, as per 1975 partition deed, Muhammed obtained many items of properties and the same is to an extent of 61.41 Ares (12.54+4.85+2.2+9.31+4.45+9.71+7.48+5.26+1.21+4.4) = 151.5 cents and thereafter, by way of exchange deed No.2817/1979, Muhammed obtained property in old Sy.No.442/1, having an extent of 09.71 Ares in Arakkappady Village. On perusing document No.2728/2005, it could be gathered that, property, having an extent of 29 Ares and 5 sq.meter i.e., 71 ¾ cents was transferred by Muhammed and the said transfer was in relation to certain items of properties ``` EX.SA NO. 8 OF 2023 6 ``` covered by B schedule in the partition deed of 1975. Thus, it appears that, even after transfer of 29 Ares and 5 sq. meter of property, Muhammed left property in his name, forming part of 61.41 Ares. It is pertinent to note in this context that, in the 1975 partition deed also, Muhammed obtained 24 cents of property in old Sy.No.442/1 and he had transferred property covered by B schedule inclusive of this property, having an extent of 09.71 Ares. 11. The entire confusion centered on this matter is the description of this much extent of property as item No.4 in B schedule partition deed. It is pertinent to note that, as per the commission report and plan submitted before the trial court in O.S.No.91/2012, the commissioner identified Item No.1 as the plaint schedule property, having an extent of 09.71 Ares in old Sy.No.442/1, now comprised in part of Re-Sy.No.86/5 in Block No.28 of Arakkappady Village. The surveyor specifically described the said property as plot No.1 in the plan, stating that the said item of the property is the property covered by sale deed No.645/1957 and exchange deed No.2817/1979. At the same time, the commissioner identified the property ## **`EX.SA NO. 8 OF 2023 7`** described in Item No.4 of B schedule, as per 1975 partition deed, as property, having an extent of 09.71 Ares in old Sy.442/1 and Re-Sy.No.86/5 in Block No.28 and the said property is separately located as plot No.2. Thus, it appears that the plaint schedule property in the suit is a property, covered by document Nos.645/1957 and 2817/1979 and no property covered by document No.2527/1975, was included as the property in the plaint schedule item. In order to make the point more clear, it has to be observed that the plaint schedule property is 09.71 Ares in old Sy.No.442/1, covered by document No.645/1957 and 2817/1979. But, the property covered by the title deed of the appellant viz., 2728/2005, is property having an extent of 09.71 Ares also in old Sy.No.442/1 included in the title deed of the appellant. Thus, the contention raised by the appellant that the plaint schedule property was also transferred in the name of the appellant, is incorrect and the property scheduled in the plaint and covered by the decree, is the absolute property of Muhammed and he obtained decree after a strong contest. Therefore, the contention raised by the appellant, cannot be countenanced. ## **`EX.SA NO. 8 OF 2023 8`** 12. Therefore, the claim petition at the instance of the appellant, who is none other than the son of the plaintiff in the suit (2[nd] respondent herein), could not succeed, based on his title deed. Therefore, the trial court rightly dismissed the claim petition and the appellant court concurred the same. 13. In this case, the learned counsel for the appellant 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.”_ 14. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any ``` EX.SA NO. 8 OF 2023 9 ``` 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 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. 15. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 :** ``` EX.SA NO. 8 OF 2023 10 ``` ## **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 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_ ``` EX.SA NO. 8 OF 2023 11 ``` _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 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_ ``` EX.SA NO. 8 OF 2023 12 ``` _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_ ``` EX.SA NO. 8 OF 2023 13 ``` _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._ 16. 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 of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something_ ``` EX.SA NO. 8 OF 2023 14 ``` _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._ 17. 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 “substantial question of law” by suffixing the words “of general ``` EX.SA NO. 8 OF 2023 15 ``` 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. 18. 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. Sd/- **A. BADHARUDEEN JUDGE** Bb