Hridayaswamy G. et al. v. Thankaprakasam A. et al.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943 RSA NO. 531 OF 2020** **AGAINST THE JUDGMENT IN AS 172/2019 OF DISTRICT COURT, PALAKKAD FDIA 1132/2012 IN OS 159/2007 OF MUNSIFF COURT, CHITTUR** ## **APPELLANTS/APPELLANTS/RESPONDENTS 5 TO 7/DEFENDANTS 5 TO 7:** 1 HRIDAYASWAMY.G, AGED 59 YEARS S/O.GURUSWAMY, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. 2 AROGYASWAMY.G, AGED 54 YEARS S/O.GURUSWAMY, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. 3 ANTHONY JOSEPH.G, AGED 44 YEARS S/O.GURUSWAMY, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. BY ADVS. SAJAN VARGHEESE K. SRI.LIJU. M.P ## **RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4 AND** ## **8/PLAINTIFF & DEFENDANTS 1 TO 4 & 8:** 1 THANKAPRAKASAM.A. AGED 68 YEARS S/O.LATE AMBROSE, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. R.S.A.531/2020 2 2 A.ANTHONI-SWAMY, AGED 61 YEARS S/O.LATE AMBROSE, G.E.260, 23/1, POLICE QUARTERS, PALAKKAD ROAD, POLLACHI, TAMIL NADU-642001. 3 MICHALERAJ.A, AGED 59 YEARS S/O.LATE AMBROSE, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. 4 PAGYASWAMY.A, AGED 55 YEARS S/O.LATE AMBROSE, SOOSANNA AUTO GARAGE, VIJAYAMANGALAM, PERUNTHURAI, ERODE, TAMIL NADU-63802. 5 AROGYASWAMY.A, AGED 49 YEARS S/O.LATE AMBROSE, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. 6 MADHALAMARY, AGED 54 YEARS D/O.LATE AMBROSE, PADINJAKARAN HOUSE, PARISAKKAL P.O., VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT678556. BY ADVS. FOR R1 (CAVEATOR) SRI.RAJESH SIVARAMANKUTTY SMT.RASHMI PATHIYIL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.01.2022, THE COURT ON 12.01.2022 DELIVERED THE FOLLOWING: R.S.A.531/2020 3 ## **JUDGMENT** Dated this the 12[th] day of January, 2022 The appellants are the defendants 5 to 7 in O.S. No. 159 of 2007 on the file of the Munsiff's Court, Chittur. The suit was filed for partition of the plaint schedule properties. 2. As per a judgment dated 18.10.2008 preliminary decree for partition was passed and the properties were directed to be partitioned by metes and bounds between the parties. Thereafter a final decree was passed for partition accepting the commission report and plan marked as Exts. C1 and C1(a). Thereafter, execution petition was filed and when delivery was about to be effected, the appellants/petitioners filed an appeal challenging the final decree along with a petition, as I.A. No. 1670 of 2019, to condone the delay of 1452 days in filing the appeal. The learned Sessions Judge dismissed the petition to condone the delay in filing the appeal on the finding that the R.S.A.531/2020 4 intention of the parties was to protract the execution proceedings as well to prevent the opposite parties to the suit from taking delivery of the plots allotted to them. The delay in filing the appeal was not condoned and thereby the appeal was also dismissed. 3. Now this Second Appeal has been filed challenging the judgment of the court below in dismissing the appeal. 4. Heard the learned counsel for the appellants as well the learned counsel for the respondents. 5. It is well settled that a Second Appeal can be entertained only if it involves a substantial question of law . The right of appeal arises only when a 'substantial question of law' is involved to decide the issue in the case. The expression 'Substantial question of law' is not defined in the Code. The Supreme Court in **Sir Chunilal V Mehta and Sons, Ltd.** v. **Century Spinning And Manufacturing Co. Ltd** (AIR 1962 SC 1314) observed as follows: - “6. …..The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be R.S.A.531/2020 5 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.” ## Further in **Hero Vinoth (Minor)** v. **Seshammal** ((2006) 5 SCC 545), the Supreme Court held as follows: “23. To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. …..” R.S.A.531/2020 6 6. Here, in this case, it is pertinent to note that a preliminary decree for partition was passed by the court as it was found that the suit properties are liable to be partitioned among the parties and that the parties are entitled for shares. Thereafter, the final decree was also passed accepting the commission report as well as the plan prepared by the Commissioner. On going through the records, it could be seen that the commissioner has effected division of the properties based on the consensus arrived at between the parties and endorsed by the Court. So, it is clear that the division of the properties was effected as agreed to by the parties concerned. The court below accepted the agreement entered into by the parties as it was found that there was some difficulty in effecting partition as per the preliminary decree. So, a consensus was arrived at between the parties and thus the plan was prepared and the report was submitted and the properties were divided as two plots, namely, A and B plots. Right of access was provided to both the plots by the Commissioner and that report was R.S.A.531/2020 7 accepted by the court. Thereafter, execution petition was filed as E.P. No. 51 of 2019 and when the parties were about to take delivery of their respective shares, an appeal was filed with a petition to condone the long delay. But, as the party could not point out 'sufficient cause' to condone the long delay, the delay petition was dismissed by the appellate court. Now this appeal is filed without any reason so as to conclude that a substantial question of law is involved in the case which is to be considered in this second appeal. On going through the entire records, I find absolutely no relevant materials on record or valid reason on facts or circumstances of the case to formulate a substantial question of law as suggested by the learned counsel for the appellants. So in short, having regard to the entire facts of the case, I find that 'no substantial question of law' is involved. So also no convincing reason has also been pointed out to condone the delay in preferring the appeal after a long delay of 1452 days. The only thing left back is to take delivery of the respective shares of the parties in the property. As no R.S.A.531/2020 8 substantial question of law is involved so as to entertain a second appeal, I find that this appeal is not maintainable and hence, it is not admitted. Therefore, this second appeal is dismissed as not admitted. No costs. Sd/- **SHIRCY V JUDGE** sb