GIRIJA and SUNDAR RAJ v. JITHIN RAJ and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 ``` ``` RSA NO. 817 OF 2020 ``` ``` AGAINST THE JUDGMENT IN AS NO.92/2015 OF ADDITIONAL DISTRICT & SESSIONS COURT-IV & ADDITIONAL MACT-IV, PATHANAMTHITTA. OS NO.601/2009 OF MUNSIFF COURT,ADOOR ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS 8 & 9:`** ``` 1GIRIJA AGED 46 YEARS D/O. RAJAN, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 2SUNDAR RAJ, AGED 50 YEARS S/O.SUBBAIAH, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 BY ADVS. VINOD MADHAVAN SRI.M.V.BOSE SMT.NISHA BOSE SRI.SHARATH S.PUTHENPARAMPAN SMT.P.M.MAZNA MANSOOR ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 2 TO 7:`** ``` 1JITHIN RAJ S/O. VIJAYAN, AGED 37 YEARS, RAJ BHAVAN, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 2PADMAKSHI, AGED 69 YEARS W/O. RAJAN, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 3SREEJA, AGED 47 YEARS D/O.PADMAKSHI, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 4SREEJITH AGED 41 YEARS S/O. RAJAN, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 ``` ## **`RSA NO. 817 OF 2020 2`** ``` 5PUSHPAKUMARI AGED 62 YEARS W/O.SOMARAJAN, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 6PRAMOD AGED 43 YEARS S/O.SOMARAJAN, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 7NITHA AGED 36 YEARS D/O. PUSHPAKUMARI, ANANDAVILASAM, MURINJAKAL, KOODAL VILLAGE & MURI, KONNI TALUK, PIN-689 693 R1 BY ADVS. SRI.R.RAJESH (VARKALA) SRI.S.MOHANDAS SRI.M.KIRANLAL SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SHRI.SAMEER M NAIR ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 817 OF 2020 3 ``` ## **JUDGMENT** Dated this the 30[th] day of October, 2023 This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1of the Code of Civil Procedure (for short ‘the C.P.C.’ hereinafter), challenging the decree and judgment in A.S.No.92/2015 on the files of the Additional District Court, Pathanamthitta, dated 25.1.2019, arising from decree and judgment in O.S.No.601/2009 on the files of the Munsiff Court, Adoor, dated 12.6.2015. 2. The appellants herein are defendants 8 and 9 in the suit and appellants in A.S.No.92/2015. Respondents herein are the plaintiff as well as defendants 2 to 7. 3. Heard the learned counsel for the appellants and the learned counsel appearing for the 1[st] respondent, the plaintiff, on admission. 4. I shall refer the parties in this appeal as 'plaintiff’ and 'defendants' for convenience. 5. Precisely, the case put up by the plaintiff before the trial ``` RSA NO. 817 OF 2020 4 ``` court is that, plaintiff purchased half right in the plaint A schedule item of property, having an extent of 1.50 Ares, as per Sale Deed No.187/2009. Therefore, document No.924/2009 created and obtained by the 9[th] defendant from the 1[st] defendant, would not bind the plaintiff. Thereby, plaintiff sought for the relief of the said declaration and partition of the plaint A schedule property into two shares and to allot ½ share in favour of the plaintiff. Similarly, plaint B schedule property also sought to be partitioned. 6. Defendants 8 and 9 contested the matter by filing written statement. The crux of the contentions raised by the defendants 8 and 9 is confined to denial of title to the plaintiff in respect of ½ right in A schedule item, on the allegation that there is dispute with regard to the title of Anandavally, who executed Sale Deed No.187/2009. Dismissal of a previous suit for injunction filed by the plaintiff as O.S.No.332/2001, also has been highlighted. As regards to B schedule, a contention was raised to the effect that the same is puramboke land and therefore, not liable to be partitioned. 7. The trial court appreciated the rival contentions, after recording evidence. PW1 to PW3 were examined and Exts.A1 to ``` RSA NO. 817 OF 2020 5 ``` A7 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B7 were marked on the side of the defendants. Exts.X1, X2 series and X3 were also marked. 8. The trial court finally found that plaint A schedule is liable to be partitioned, as sought for, while rejecting prayer for partition of plaint B schedule, holding the same as puramboke land. Ultimately, the trial court granted decree as under: - _(I) “Plaint A schedule property is found partible, it shall be divided into four equal shares. Plaintiff is entitled to get 2/4[th] share. Defendants 2, 3, 4 and 8 are jointly entitled to get 1/4[th] share. Defendants 5 to 7 are jointly entitled to get 1/4[th] share. Plaint B schedule is not found partible. Cost shall come out of the estate”._ - _(II) Plaintiff is entitled to get a declaration that document No.924/09 of SRO Enadhimangalam is not binding on the plaintiff and his right over the plaint schedule property.”_ 9. Though appeal preferred before the appellate court, the same also was dismissed. Thus, concurrent verdicts of the trial court as well as the appellate court, are under challenge. The learned counsel for the defendants 8 and 9/appellants mainly ``` RSA NO. 817 OF 2020 6 ``` challenged the verdict of the trial court on the ground that the property covered by the title deed of the plaintiff, viz., Sale Deed No.187/2009, marked as Ext.A3, is lying as way towards the house of defendants 8 and 9 and therefore, the same is not partible. 10. In view of the argument, I have perused the written statement filed by the defendants 8 and 9, a copy of the same has been placed by the learned counsel for the defendants 8 and 9. On a meticulous reading of the written statement, the contentions are mainly threefold. 1) They disputed Ext.A3 title deed. 2) Pointed out dismissal of O.S.No.332/2001, a suit for injunction filed by the plaintiff and 3) Raised contention that Plaint B schedule property is puramboke land, and not partible. Obviously, no contention seen raised to the effect that the property covered by Ext.A3, forming part of plaint A schedule, is a way. Moreover, no contention raised to the effect that the A schedule property is not partible, since the same is the way provided for defendants 8 and 9 by specifying the said right in detail or atleast remotely. In such a case, it was found by the trial court that the contention raised by the defendants that Ext.A3 document would ## **`RSA NO. 817 OF 2020 7`** not confer title upon the plaintiff, could not be justified, as no evidence let in to hold so. It was observed by the trial court that, as per Ext.A2, Anandavally obtained ¼ right over plaint A schedule property and Vanajakshi conferred ¼ right in favour of Anandavally. Thus, Anandavally who obtained ½ right of plaint A schedule property transferred the same, as per Ext.A3 to the plaintiff. Since B schedule is found as puramboke land, excluding the said extent of land, the trial court granted preliminary decree of partition, allowing partition of plaint A schedule property, as hereinabove extracted. 11. Going by the available materials, it is emphatically clear that plaint A schedule property inclusive of the ½ share obtained by the plaintiff, is lying together and therefore, the plaintiff is legally entitled to get partition of the same to get separate possession of his share, obtained as per Ext.A3. In fact, no contention raised by the defendants, claiming right of way over the property covered by Ext.A3 or in respect of plaint A schedule item, as argued before the trial court, appellate court or before this Court, by raising necessary pleadings in the written statement, as I have already extracted. Thus, a case which was ``` RSA NO. 817 OF 2020 8 ``` not pleaded, is being repeatedly raised before all courts. It is the fundamental principles of Civil Law is that, in order to succeed a contention, the same should have been pleaded first, then proved, in accordance with the pleadings. Thus, it appears that the claim of way over the property, covered by Ext.A3, is not supported by pleadings and in such view of the matter, the said contention cannot be appreciated at all and defendants 8 and 9 never succeed in getting a way through the plaint A schedule item of property. Thus, it appears that the trial court granted preliminary decree of partition on appreciation of the facts and evidence correctly, which was confirmed by the appellate court also. Thus, the concurrent verdicts do not require any interference. 12. 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, and_ ``` RSA NO. 817 OF 2020 9 ``` _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.”_ 13. 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 to ``` RSA NO. 817 OF 2020 10 ``` 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. 14. 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 a right to argue that the_ ``` RSA NO. 817 OF 2020 11 ``` _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 cannot be_ ``` RSA NO. 817 OF 2020 12 ``` _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."_ _When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the_ ``` RSA NO. 817 OF 2020 13 ``` _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._ 15. 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 in contradistinction with –_ ``` RSA NO. 817 OF 2020 14 ``` _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._ 16. 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 importance” as has been done in many other provisions such as S.109 of the Code ``` RSA NO. 817 OF 2020 15 ``` 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. 17. 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