Jameela and another v Mohammed Basheer and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 15[TH] DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945 ``` ``` RSA NO. 452 OF 2022 AGAINST THE JUDGMENT AND DECREE IN AS 130/2018 OF ADDITIONAL DISTRICT COURT-I, MANJERI DATED 15.03.2021 AGAINST THE JUDGMENT & DECREE IN FINAL DECREE APPLICATION NO.794/2016 IN OS 218/2015 OF MUNSIFF MAGISTRATE COURT,PERINTHALMANNA DATED 22.08.2017 ``` ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** ``` 1JAMEELA AGED 54 YEARS D/O. LATE CHENKARA AVARA, RESIDING AT ANGADIPURAM AMSOM, PARIYAPURAM DESOM, PUTHANAGADI P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679 321. 2RUKKIYA, AGED 49 YEARS D/O. LATE CHENKARA AVARA, RESIDING AT ANGADIPURAM AMSOM, PARIYAPURAM DESOM, PUTHANAGADI P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679 321. BY ADV K.MUHAMMED SALAHUDHEEN ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1MUHAMMED BASHEER,(DIED) AGED 46 YEARS S/O. LATE CHENKARA AVARA, RESIDING AT ANGADIPURAM AMSOM, PARIYAPURAM DESOM, PUTHANAGADI P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679 321. 2SHOUKATHALLI, AGED 44 YEARS S/O. LATE CHENKARA AVARA, RESIDING AT ANGADIPURAM AMSOM, PARIYAPURAM DESOM, PUTHANAGADI P.O., PERINTHALMANNA TALUK, MALAPPURAM DISTRICT 679 321. 3(ADDL).FATHIMA AGED 50 YEARS W/O.LATE MUHAMMED BASHEER, CHENKARA HOUSE, ANGADIPURAM AMSOM, PARIYAPURAM DESAM, PUTHANANGADI P.O., PERINTHALMANNA TALUK, MALAPURAM DISTRICT, PIN-679321 4(ADDL) JAMSHIYA NAJMA AGED 20 YEARS D/O.LATE MUHAMMED BASHEER, CHENKARA HOUSE, ANGADIPURAM AMSOM, PARIYAPURAM DESAM, PUTHANANGADI P.O., PERINTHALMANNA TALUK, MALAPURAM DISTRICT , PIN-679321 ``` ``` RSA NO. 452 OF 2022 ``` ``` 2 ``` ``` 5ADDL.JAHANA SHERIN AGED 18 YEARS D/O.LATE MUHAMMED BASHEER, CHENKARA HOUSE, ANGADIPURAM AMSOM, PARIYAPURAM DESAM, PUTHANANGADI P.O., PERINTHALMANNA TALUK, MALAPURAM DISTRICT , PIN-679321 6(ADDL.) MUHAMMED JASIR AGED 14 YEARS (MINOR) S/O.LATE MUHAMMED BASHEER, CHENKARA HOUSE, ANGADIPURAM AMSOM, PARIYAPURAM DESAM, PUTHANANGADI P.O., PERINTHALMANNA TALUK, MALAPURAM DISTRICT, REP. BY HIS MOTHER AND NEXT FRIEND, FATHIMA, PIN-679321 (THE LEGAL REPRESENTATIVES OF DECEASED R1 ARE IMPLEADED AS ADDL.R3 TO R6 AS PER ORDER DATED 25.07.2013 IN IA.1/2023) BY ADVS. P.SAMSUDIN FOR R1 TO R6 MILAN RACHEL MATHEW LIRA A.B. FOR R1 AND R2 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 452 OF 2022 ``` ``` 3 ``` ## JUDGMENT Dated this the 15[th] day of November, 2023 Plaintiffs in OS No.218/2015 on the files of the Munsiff Court, Perinthalmanna, being aggrieved by the final decree passed in IA No.794/2016 in the said case, which was confirmed by the appellate court in AS No. 130/2018 (District Court, Manjeri), have filed this appeal, challenging the said verdict. 2. The appellants are the plaintiffs and respondents are the defendants. 3. Heard the learned counsel for the appellants and the respondents. I shall refer the parties as ‘Jameela and another’, as well as ‘Mohammed Basheer and another’. 4. On the facts of this case, ‘Jameela and another’ as plaintiffs filed suit for partitioning the plaint scheduled property arraying ‘Mohammed Basheer and another’ as defendants. During pendency of the matter, a compromise had been entered, between them as a result of mediation. According to the mediation agreement, properties were agreed to be partitioned in between the parties as per the Mohammedan Law, in the proportion 1/6 (male) & 2/6 (female) shares. 5. Eventhough, ‘Jameela and another’ did not file final decree application, ‘Mohammed Basheer and another’ filed IA No.794/2016 to ``` RSA NO. 452 OF 2022 ``` ``` 4 ``` pass final decree in terms of the preliminary decree. The trial court issued notice to ‘Jameela and another’, in the final decree application and on 27.09.2016, Adv.M.K.Jayasree filed vakalath for ‘Jameela and another’. Thereafter a survey commission was deputed and the Surveyor filed report on 27.06.2017. The learned Munsiff gave specific posting to file objection to commission report on 08.08.2017. But, no objection filed by either side. 6. At the time of admission and hearing, the learned counsel for ‘Jameela and another’ submitted that the compromise decree which led to passing of preliminary decree is the outcome of fraud and ‘Jameela and another’ had no knowledge of the same. He also argued that during final decree proceedings, property having more value, where laterite stones present in abundance, was granted in favour of ‘Mohammed Basheer and others’ and accordingly it is submitted that the final decree passed in the present case is not on metes and bounds, therefore, the same requires reconsideration at the hands of this Court. 7. Strongly, repelling this contention, the learned counsel for ‘Mohammed Basheer and others’ submitted that a compromise decree was passed in the mediation and thereafter, Mohammed Basheer and another final decree application and the appellants, viz, ‘Jameela and another’ appeared through the lawyer of their choice and no objection ``` RSA NO. 452 OF 2022 ``` ``` 5 ``` filed in the final decree application. Thereafter, survey commission was appointed and thereafter, Ext.C1 and Ext.C1(a) report and plan were filed by the commissioner. ‘Jameela and another’ did not file any objection to the commission report and accordingly, acting on the unopposed commission report and plan, final decree was passed. Thereafter, ‘Mohammed Basheer and another’ produced necessary non-judicial stamp papers for engrossing the final decree and ultimately final decree was engrossed. Thereafter, delivery was also effected much earlier. It is submitted by the learned counsel for ‘Mohammed Basheer and another’ that soon after the delivery, ‘Mohammed Basheer and another’ sold the property to third parties and now they have been enjoying the property and have been extracting of laterite stones from the said property. According to the learned counsel for ‘Mohammed Basheer and another’, the challenge against the final decree filed by ‘Jameela and another’ without raising any objection to the final decree application or the commission report and plan, cannot be sustained legally, that too at the second appellate stage. 8. The learned counsel for ‘Jameela and another’ submitted that they are pardanashin illiterate ladies and they were cheated by the lawyer, commissioner etc and the final decree under challenge came into existence in consequence thereof. ``` RSA NO. 452 OF 2022 ``` ``` 6 ``` 9. While addressing this challenge, I have perused the copy of plaint filed by ‘Jameela and anther’ seeking partition of the plaint scheduled property. The same would go to show that Adv. Jayasree M.K. filed the suit in an ordinary manner, without mentioning anything in the plaint as to the status of ‘Jameela and another’ as pardanashin ladies who could not come out. As ordinary citizens, they have filed the suit and finally the same ended in compromise decree. 10. I have also perused the appeal memorandum in AS No. 130/2018. In the first appeal memorandum also there is no contention raised by ‘Jameela and another’ to the effect that the preliminary decree generated out of compromise is the outcome of fraud and ‘Jameela and another’ had no knowledge regarding the same. On reading the averments in the appeal memorandum alongwith the grounds therein, the inference is that, the challenge raised in the first appeal is regarding allotment of shares and no whisper could be noticed in the first appeal memorandum to the effect that the compromise entered into between the parties, out of mediation, is the outcome of fraud and ‘Jameela and another’ did not participate or put signatures therein. 11. It is submitted by the learned counsel for ‘Jameela and another’ that when a compromise is generated without the junction of parties by playing fraud or otherwise, the same can be challenged before ``` RSA NO. 452 OF 2022 ``` ``` 7 ``` the same court and accordingly, ‘Jameela and another’ filed such a petition to recall the compromise. 12. To be on the crux of this matter, in fact, ‘Jameela and another’ did not have a case before the trial court that the commission report and plan (C1 and C1(a)) insufficient to grant final decree for partition or the allotment of shares as per Exts.C1 and C1(a) is not in accordance with metes and bounds, in any manner. Therefore, the after thought at the instance of ‘Jameela and another’, when they noticed presence of laterite stones in the shares allowed to ‘Mohammed Basheer and another’, that too, when removal of the same at the instance of the subsequent purchasers was noticed, has no legs to stand. Accordingly, there is no substantial question of law arising out of this appeal, to admit and maintain this appeal. 13. In order to admit and maintain the Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 14. In this case, the learned counsel for the defendant 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_ ``` RSA NO. 452 OF 2022 ``` ``` 8 ``` _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 defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 15. 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 be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such ``` RSA NO. 452 OF 2022 ``` ``` 9 ``` ## question. 16. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], Nazir Mohamed v. J. Kamala and Others reported in 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 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_ ``` RSA NO. 452 OF 2022 ``` ``` 10 ``` _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 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_ ``` RSA NO. 452 OF 2022 ``` ``` 11 ``` _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 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._ ## 17. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], Government of Kerala v. Joseph, 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_ ``` RSA NO. 452 OF 2022 ``` ``` 12 ``` _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._ 18. 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 or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal ``` RSA NO. 452 OF 2022 ``` ``` 13 ``` 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. 19. 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, the appeal stands dismissed. All the pending interlocutory applications in this second appeal shall also stand dismissed. sd/- A. BADHARUDEEN JUDGE Nsd