Ex.S.A.1/2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943** **EX.SA NO. 1 OF 2022** **AGAINST THE ORDER IN EA 152/2016 IN E.P. NO. 26/2014 IN OS 348/1986 OF ADDITIONAL MUNSIFF COURT, KOLLAM AS 71/2021 OF II ADDITIONAL DISTRICT COURT KOLLAM** ## **APPELLANTS/APPELLANTS/PETITIONERS:** 1 SAROJAM, AGED 60 YEARS W/O LATE MICHAEL, THODIYIL PURAYIDAM, PULTHOTTAM, THAMARAKULAM, KOLLAM-691 001. 2 PRABHU @ FRANCIS, AGED 40 YEARS S/O LATE MICHAEL, THODIYIL PURAYIDAM, PULTHOTTAM, THAMARAKULAM, KOLLAM-691 001. 3 AGNES @ PRATHIBHAM, AGED 40 YEARS D/O LATE MICHAEL, THODIYIL PURAYIDAM, PULTHOTTAM, THAMARAKULAM, KOLLAM-691 001. BY ADV S.SREEKUMAR (KOLLAM) ## **RESPONDENTS/RESPONDENTS 1 TO 20 & 22 TO 30/RESPONDENTS 1 TO 20 &22 TO** ## **30:** 1 PRASANNA KUMARI, D/O.RADHAMMA, USHAS, UMMANNOOR, NELLIKUNNAM, KOTTARAKARA, KOLLAM DISTRICT, PIN 691 520 (FROM THEKKE KOTTAVILLA PUTHEN VEEDU, THAZHATHU CHERRY, CHATHANNOOR, KOLLAM DISTRICT, PIN - 691 572. 2 VIJAYAKUMARAN NAIR, S/O.BHASKARAN PILLAI, VIJIL HOUSE, MAYYANAD P.O., KOLLAM, PIN - 691 303. 3 MOHANAKUMARAN NAIR, S/O.BHASKARAN PILLAI, KURAKKANI NADAYIL VEEDU, VARKALA, PIN - 695 141 REPRESENTED BY POWER OF ATTORNEY HOLDER SANTHA MOHAN, W/O.MOHANAKUMARAN KURAKKANI NADAYIL VEEDU, VARKALA, PIN - 695 141. Ex.S.A.1/2022 2 |4|SURESH KUMAR, S/O.BHASKARAN PILLAI, S.V.LODGE,| |---|---| ||THOPPUMPADY, ERNAKULAM, PIN - 682 005 FROM KOTTAVILA| ||PUTHEN VEEDU.| |5|SETHUKUMARI AMMA, D/O.RADHAMMA, LONDON FORT GATE,| ||NELLI ROAD E-7/169, REPRESENTED BY POWER OF ATTORNEY| ||HOLDER PRASANNA KUMARI AMMA, D/O.RADHAMMA USHAS,| ||UMMANNOOR, NELLIKUNNAM, KOTTARAKARA, KOLLAM DISTRICT, PIN| ||- 691 520.| |6|USHA KUMARI AMMA, D/O.RADHAMMA VATTANGADU VEEDU,| ||KEEZHATTINGAL P.O., THEKKE KOTTAVILA, THIRUVANANTHAPURAM| ||DISTRICT, PIN - 695 306.| |7|RADHAKRISHNAN NAIR, S/O.GOVINDAN KUTTY NAIR,| ||BALRAM BUILDING, MUNDAKKAL WEST, KOLLAM - 691 016.| |8|INDU SEKHARAN NAIR, S/O.GOVINDAN KUTTY NAIR,| ||JYOTHI HOUSE, JAWAHAR NAGAR, TC 9/213/1,| ||THIRUVANANTHAPURAM - 695 003.| |9|SASI KUMARAN NAIR, S/O.GOVINDAN KUTTY NAIR,| ||THAYYIL THARAYIL PADANAYAR KULANGARA NORTH,| ||KARUNGAPPALLY, KOLLAM, PIN - 690 544.| |10|SEETHA LEKSHMI AMMA, D/O.PADMAVATHY AMMA,| ||MUNDEZHATHU HOUSE, THEVALLY, KOLLAM - 691 009.| |11|RAJASEKHARAN NAIR, S/O.GOVINDAN KUTTY NAIR, SREEPADAMAN,| ||CHIRAYIL KIZHAKKATHIL,MANGAD P.O., KOLLAM REPRESENTED BY| ||POWER OF ATTORNEY HOLDER RAMESH CHANDRAN,| ||S/O.GOVINDAN KUTTY NAIR, SREEPADAM, CHIRAYIL| ||KIZHAKKATHIL, MANGAD P.O., KOLLAM - 691 015.| |12|REGHU, S/O.GOVINDAN KUTTY NAIR, CHARUVILA VEEDU,| ||CHENTHAPPOOR,KOLLAM - 691 001.| |13|RAMESH CHANDRAN, S/O.GOVINDAN KUTTY NAIR, SREEPADMAN,| ||CHIRAYIL KIZHAKKATHIL,MANGAD P.O., KOLLAM - 691 015.| |14|K.V.BHASKARAN NAIR, S/O.VELAYUDHAN PILLAI, PALAZHI HOUSE,| ||TENRA - 154, THEVALLY, KOLLAM - 691 009.| Ex.S.A.1/2022 3 - 15 SHEELA KUMARI, D/O.SANTHAMMA PILLAI, PALAZHI HOUSE, TENRA 154,THEVALLY, KOLLAM - 691 009. - 16 AMBILI, D/O.SANTHAMMA PILLAI, PALAZHI HOUSE, TENRA 154, THEVALLY, KOLLAM - 691 009. - 17 K.B.SANTHOSH KUMAR, S/O.BHASKARAN NAIR, PALAZHI HOUSE, TENRA 154, THEVALLY, KOLLAM - 691 009. - 18 MINI B.S., D/O.SANTHAMMA PILLAI, VAISHNAVAM HOUSE, MUTHADA, VATTIYOORKAVU, THIRUVANANTHAPURAM- 695 013. - 19 BINDHU B.S., D/O.SANTHAMMA PILLAI, EDATHITTA PUTHEN VEEDU, CHANGANKULANGARA, OACHIRA, PIN - 690 526. - 20 RAMAN CHELLAPPAN, THODIYIL PURAYIDAM, PULTHOTTAM, THAMARAKULAM, KOLLAM - 691 001. - 21 ABIDA BEEVI, STAR MANZIL,THAMARAKULAM, KOLLAM - 691 001. 22 ALL INDIA FORWARD BLOC, STATE COMMITTEE REPRESENTED BY ITS PRESIDENT N.VELAPPAN NAIR, THEVALLY, KOLLAM - 691 001. - 23 SANTHAMMA, PUTHEN VEEDU PULTHOTTAM THODI, THARAMARAKULAM, KOLLAM - 691 001. - 24 SURESH, PUTHEN VEEDU, PULTHOTTAM THODI, THAMARAKULAM, KOLLM - 691 001. - 25 SATHEESH, PUTHEN VEEDU, PULTHOTTAM THODI, THAMARAKULAM, KOLLAM - 691 001. - 26 GEETHA, PUTHEN VEEDU, PULTHOTTAM THODI, THAMARAKULAM, KOLLAM - 691 001. - 27 SHARMILA, PUTHEN VEEDU, PULTHOTTAM THODI, THAMARAKULAM, KOLLAM - 691 001. - 28 SUNIL KUMAR, PUTHEN VEEDU, PULTHOTTAM THODI, THAMARAKULAM, KOLLAM - 691 001. Ex.S.A.1/2022 4 29 ADV.N.JANARDHANAN PILLAI KURUVELIL HOUSE,MANAKKAD, VADAKKEVILA, KOLLAM - 691 021. THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2022, THE COURT ON 17.02.2022 DELIVERED THE FOLLOWING: Ex.S.A.1/2022 5 ## **JUDGMENT** Dated this the 17[th] day of February, 2022 This appeal is filed by the appellants feeling aggrieved by the dismissal of A.S. No. 71 of 2021 filed by them before the II Additional District Court, Kollam. 2. The appellants are the petitioners in E.A. No. 152 of 2016 in E.P. No. 26 of 2014 in O.S. No. 348 of 1986. 3. In the petition filed under Order XXI Rule 97 of the Code of Civil Procedure, they have contended that they are not liable to be evicted from the residential building as they are the tenants of the same. The appellants are the wife and children of one late Michael. Their claim is that the 1[st] judgment debtor in the execution petition was the owner, when Michael had taken the building on rent. The 1[st] judgment debtor later sold it to the 4[th] judgment debtor and thereafter the appellants had made improvements and obtained electric connection and in fact they have utilized an amount of Rs.5 Lakhs to improve the building. Ex.S.A.1/2022 6 When there was an attempt to evict them forcefully, O.S. No. 312 of 2002 was filed and it was decreed in their favour. Now the decree holders are trying to evict them and hence, the claim petition. 4. The claim was resisted by the decree holders contending that the 1[st] judgment debtor or the 4[th] judgment debtor have no right over the decree schedule building and in fact the 1[st] judgment debtor is the 1[st] defendant in the suit. The decree was granted declaring title of the decree holders, i.e. the plaintiff and the defendants 6 to 8. As per the decree, the 1[st] judgment debtor was directed to remove item No.3 construction. As the title of the decree holders was declared, the 4[th] judgment debtor had no right or claim over the said property and as the decree holders have every right to demolish the structure and evict the petitioners from the property, the claim petition was not maintainable, was the contention raised by them before the execution court. Ex.S.A.1/2022 7 5. The court below after considering the entire evidence adduced by the parties concluded that the petitioners are liable to be evicted from the decree schedule property so as to execute the decree. 6. In the appeal, the order of the lower court was upheld by the appellate court and found that the appellants have absolutely no evidence to show that they are tenants of the building. Though a decree has been obtained against forcibly evicting them, they are bound by the decree obtained by the decree holders in O.S. No. 348 of 1986. The decree was passed on 29.08.1995 and has attained finality when it was confirmed in appeal on 27.08.2002. In the execution petition filed in the year 2014, they have sought for eviction of the judgment debtors. No evidence was available to claim tenancy right over the building by these appellants from 1984 onwards and hence the appellate court dismissed the appeal and confirmed the findings of the execution court. Ex.S.A.1/2022 8 7. Facing failure before the appellate court, this second appeal has been filed. 8. It is settled that a second appeal can be entertained only if the court is satisfied that there involves a substantial question of law to be agitated between the parties in the appeal. The apex court in **Sir Chunilal V Mehta and Sons Ltd.** v. **Century Spinning and Manufacturing Co. Ltd.** (AIR 1962 SC 1314) has held as follows: “6. …........ The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. ...” ## In **Hero Vinoth (Minor)** v. **Seshammal** [(2006) 5 SCC 545] the apex court has observed as follows: Ex.S.A.1/2022 9 “21. The phrase “substantial question of law”, as occurring in the amended Section 100 CPC 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 Section 109 of the Code or Article 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. ...” 9. Here, on a perusal of the records, I could not find any reason to conclude that any substantial question of law is involved in this case. Though the appellants have contended that they are not liable to be evicted as they are tenants of the building, that cannot be treated as a question of law so as to entertain a second appeal especially when the relationship between landlord and tenant is not proven in the suit. No materials are available to claim their residence in decree schedule building, as claimed by them from 1984 onwards. By Ex.S.A.1/2022 10 the concurrent findings of the courts below the tenancy right claimed by the appellants was found against on the basis of the materials available on record. The records would reveal that the endeavour of the appellants is to obstruct the execution of decree. The delivery of the decree schedule property which the decree holders obtained against them, by demolishing item No.3 construction as per a decree of the year 1995 which attained finality in the year 2002, has to be effected, otherwise the decree will become nugatory. In short, no substantial question of law is involved in this case and as there is no valid ground to interfere with the concurrent findings of the trial court and the first appellate court this appeal is only to be dismissed. Dismissed in limine. Sd/- SHIRCY V JUDGE sb