GUNASUNDARI v. KRISHNAMOORTHY, GOVT. OF KERALA represented by DISTRICT COLLECTOR, PALAKKAD, and THE TAHSILDAR, LAND ACQUISITION, PALAKKAD

## _`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. 635 OF 2023`_ ``` AGAINST THE JUDGMENT AND DECREE IN AS 80/2020 ON THE FILES OF THE ADDITIONAL DISTRICT COURT, PALAKKAD, DATED 18.08.2023 AND JUDGMENT AND DECREE IN OS 18/2016 ON THE FILES OF THE ADDITIONAL SUB COURT PALAKKAD, DATED 26.02.2020 ``` ## _`APPELLANT/3RD APPELLANT/3RD PLAINTIFFS:`_ ``` GUNASUNDARI AGED 57 YEARS D/O. PAZHANIAPPA NAICKER, SENTHIL NIVAS, AVP ROAD, SREEKRISHNA NAGAR, KANJIKODE, PALAKKAD, PIN - 678621 BY ADV SHABU SREEDHARAN ``` ## _`RESPONDENTS / RESPONDENTS 1 TO 3 & APPELLANTS 1,2,4 & 5/ DEFENDANTS 1 TO 3 &`_ ``` PLAINTIFFS 1,2,4 & 5: ``` |_`1`_|_`KRISHNAMOORTHY`_| |---|---| ||_`AGED 56 YEARS`_| ||_`S/O. PAZHANIAPPA NAICKER, MALAYANCHALLA, THALAPPALLAM, KANJIKODE,`_| ||_`PALAKKAD, PIN - 678621`_| |_`2`_|_`GOVT. OF KERALA`_| ||_`REPRESENTED BY DISTRICT COLLECTOR, PALAKKAD, PIN - 678001`_| |_`3`_|_`THE TAHSILDAR`_| ||_`LAND ACQUISITION, PALAKKAD, PIN - 678001`_| |_`4`_|_`P. VENKITACHALAM`_| ||_`S/O. PAZHANIAPPA NAICKER, S.R. LAKSHMANAN NAGAR, D NO. 57`_| ||_`SINGANALLUR, COIMBATORE, TAMILNADU, PIN - 641005`_| |_`5`_|_`P. MANOMANI`_| ||_`D/O. PAZHANIAPPA NAICKER, 15/1 BHARATHIDASAN STREET, P.N. PUDUR,`_| ||_`MARUTHAMALAI MANI ROAD, COIMBATORE, TAMILNADU, PIN - 641041`_| |_`6`_|_`VINODHINI`_| ||_`D/O. LATE PUSHPALATHA, SENTHIL NIVAS, AVP ROAD, SREEKRISHNA NAGAR,`_| ||_`KANJIKODE, PALAKKAD, PIN - 678621`_| |_`7`_|_`SARAVANAKUMAR`_| ||_`S/O. LATE PARIJATHAM, 6/380, KURUCHI HOUSING PHASE 2 (SIDCO POST),`_| ||_`SUNDARAPURAM, COIMBATORE, TAMILNADU, PIN - 641021`_| ## _`OTHER PRESENT:`_ ``` SR GP K DENNY DEVASSY ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.10.2023, THE COURT ``` ``` ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A No. 635 of 2023 ``` ``` ..2.. ``` ## _**J U D G M E N T**_ ## **Dated this the 30[th] day of October, 2023** This Regular Second Appeal has been filed under Section 100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short) challenging decree and judgment in A.S.No. 80/2020 on the files of the Additional District Court (ADHOC) III, Palakkad dated 26.02.2020 arising out of decree and judgment in O.S. No. 18/2016 on the files of the Additional Sub Court, Palakkad. 2. Heard the learned counsel appearing for the appellant on admission. Perused the verdicts under challenge. 3. I shall refer the parties in this Regular Second Appeal as ‘ _plaintiffs_ ’ and ‘ _defendants_ ’ for convenience. 4. This appeal has been filed by the 3[rd] plaintiff. Originally, plaintiffs 1 to 5 filed suit for partition alleging that plaint schedule properties comprising five items, originally belonged to Marimuthu, father of Pazhaniyappa Naicker. Since the properties belong to joint family of the plaintiffs and the defendants, after ``` R.S.A No. 635 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** the death of Marimuthu and Pazhaniyappa Naicker, the properties were liable to be partitioned and thereby plaintiffs would got 11/18 shares and the defendant No.1 would get 7/18 shares therein. The Government of Kerala represented by the District Collector, the Tahsildar, Land Acquisition, Palakkad also were impleaded as supplementary defendants 2 and 3 on the allegation that a part of the property was acquired by the Government for IIT, Palakkad. 5. 1[st] defendant filed written statement and contended that the plaint schedule items were not joint family properties and the same were not owned by Marimuthu. The joint possession of the same by the plaintiffs and the defendants also was denied. The contention raised by the 1[st] defendant was that Pazhaniyappa Naicker obtained absolute title over the properties as per purchase certificate No. 778/72 issued by the Land Tribunal, Kuzhalmannam and he held the property as self-acquired property. Thereafter, Pazhaniyappa Naicker executed settlement ``` R.S.A No. 635 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** deed in favour of the 1[st] defendant on 22.12.2001, vide settlement deed No. 5653/2001 of Palakkad SRO and the 1[st] defendant was the absolute owner in possession of the plaint schedule property covered by the settlement deed. Further contention raised by the 1[st] defendant was that in so far as the plaint item Nos. 2, 4, and 5 properties also Pazhaniyapa Naicker executed will deed No. 232/III/2001 of Palakkad SRO and thereby, entire plaint schedule items were owned and possessed by the 1[st] defendant. 6. The trial court framed necessary issues and tried the case. During trial, the trial court recorded evidence. PW1 examined and Exts.A1 to A3 were marked on the side of the plaintiffs. DWs.1 and 2 were examined and Exts. B1 to B6 were marked on the side of the defendants. 7. In this matter, Exts. B1 and B2 are the documents relied on by the 1[st] defendant to prove his absolute title over the plaint schedule items, in continuation of Ext.B3 purchase certificate No. 777/1917. Accordingly, the trial court found that the 1[st] ``` R.S.A No. 635 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** defendant perfected title in respect of the entire plaint schedule properties and therefore the same were not partible and accordingly the suit was dismissed. 8. On the appeal filed before the Additional District Court, Palakkad, the same was also dismissed confirming the finding of the trial court. 9. On appraisal of the materials available, it could be seen that one Pazhaniyappa Naicker obtained Ext.B3 purchase certificate in his name in relation to the plaint schedule properties. Later, he executed Ext.B1 settlement deed No. 5653/2001 and Ext. B2 will deed No. 232/III/2001 in the name of the 1[st] defendant. Thereby the 1[st] defendant perfected absolute title to the plaint schedule items as such the same are not partible. In view of the matter, the contention raised by the plaintiffs to the effect that the properties are partible, ignoring Exts. B1 and B2 in the name of the 1[st] defendant, could not be justified and thereby, the trial court dismissed the suit, and the said verdict was ``` R.S.A No. 635 of 2023 ``` ``` ..6.. ``` confirmed by the appellate court also. The said concurrent verdicts are fully justifiable and the same do not require any interference. Thus no substantial question of law arises to be formulated to admit and maintain this second appeal. 10. In this case, the learned counsel for the appellant failed to justify 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.”_ 11. 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 ``` R.S.A No. 635 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** 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. 12. In the decision in **Nazir Mohamed v. J. Kamala** and ``` R.S.A No. 635 of 2023 ``` ``` ..8.. ``` ## **2020 KHC 6507** : **AIR 2020 SC 4321** : **2020** Others reported in [ ## **(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_ ``` R.S.A No. 635 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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_ ``` R.S.A No. 635 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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_ ``` R.S.A No. 635 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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._ 13. 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_ ``` R.S.A No. 635 of 2023 ``` ``` ..12.. ``` _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 – 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._ 14. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 ``` R.S.A No. 635 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 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. ``` R.S.A No. 635 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 15. In view of the matter, no substantial question of law arises to be formulated in view of the mandate of Section 100 r/w Order 42 Rule 1 of the Civil Procedure Code to admit and adjudicate this appeal. Accordingly, this regular second appeal stands dismissed, without being admitted. All Interlocutory application also stands dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```