Jayan v. Sathyabhama

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` MONDAY, THE 9[TH] DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 ``` ## **`RSA NO. 615 OF 2023`** ``` AGAINST THE JUDGMENT IN A.S.NO.33/2022 OF SUB COURT, PERUMBAVOOR AGAINST THE JUDGMENT IN O.S.No.206/2012 OF MUNSIFF COURT, PERUMBAVOOR ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` JAYAN AGED 53 YEARS S/O. SUBRAMANIYAN, PULICKAL HOUSE, PULLUVAZHIKARA,RAYAMANGALAM VILLAGE,ERNAKULAM, PIN - 683545 BY ADVS. A.T.ANILKUMAR V.SHYLAJA ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` SATHYABHAMA AGED 62 YEARS W/O.PARAMESWARAN NAIR, PARAYIL, HOUSE, PULLUVAZHI KARA, RAYAMANGALAM VILLAGE, PIN- ERNAKULAM, PIN - 683545 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 615 OF 2023 2 ``` ## **JUDGMENT** Dated this the 9[th] day of October, 2023 This Regular Second Appeal has been filed under Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in O.S.No.206/2012, dated 19.8.2022 on the files of the Munsiff Court, Perumbavoor and also against the judgment and decree in A.S.No.33/2022, dated 23.9.2023 on the files of the Sub Court, Perumbavoor. 2. Heard the learned counsel for the appellant on admission. 3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’ for convenience. 4. In this matter, the plaintiff raised contention before the trial court that the plaint A schedule property, having an extent of 71 cents, originally covered by partition deed No.731/1988 belonged to the plaintiff, as B schedule in the partition deed. The specific case put up by the plaintiff before the trial court was that, now the property in possession of the plaintiff is exclusive of B ## **`RSA NO. 615 OF 2023 3`** schedule item, having an extent of 4 cents possessed by the defendant, which is part and parcel of A schedule property. Accordingly, the plaintiff filed suit for declaration of title over A schedule property, recovery of possession of B schedule property as well as permanent prohibitory injunction. 5. The defendant countered the suit and claimed title over B schedule property also, based on the same partition deed on the assertion that, the defendant obtained property as per partition deed No.2119/2010 and accordingly, it was contended that the allegation of the plaintiff that the plaint B schedule property was part of A schedule, is incorrect. According to the defendant, B schedule property is part of the property of the defendant. 6. Based on the said pleadings, the trial court recorded evidence. PW1 was examined and Exts.A1 to A6 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 to B3 were marked on the side of the defendant. Commissioner and Surveyor got examined as CW1 and CW2 and Exts.C1 and C1(a) were marked on their side. 7. On hearing both sides and on appreciation of evidence, the trial court decreed the suit as under: ``` RSA NO. 615 OF 2023 4 ``` - _“21. In the result, the suit is decreed with costs._ _1. That the defendant is hereby directed to surrender the possession of the plaint B schedule property to the plaintiff._ _2. The defendant is restrained from destroying any portion of the boundaries of plaint A schedule property or damage the properties or change the physical features of plaint A schedule property._ _3. The Ext.C1 & C1(a) shall do form part of the decree._ _4. The plaintiff is entitled to the costs of the suit.”_ 8. Eventhough appeal was preferred as per judgment in A.S.No.33/2022, dated 23.9.2023, the learned appellate Judge also dismissed the appeal. 9. While canvassing admission of this appeal, the learned counsel for the appellant/defendant would submit that, though the trial court as well as the appellate court concurrently found against the appellant/defendant, a bare perusal of Ext.C1 plan, would convince this Court that the finding as to possession of 1.57 Ares of property as B schedule, being part of A schedule, is incorrect and in fact, B schedule is part and parcel of the property of the defendant, covered by his title deed, though as per the title ``` RSA NO. 615 OF 2023 5 ``` deed of the defendant, the property is described as 25.85 Ares and now, the same is having an extent of 28.90 Ares. According to the learned counsel for the appellant/defendant, eventhough it has come out in evidence that the measurement is not based on any old survey plan or boundaries, the courts below negatived the said contention raised by the defendant and decreed the suit. 10. In order to ascertain the contention raised by the learned counsel for the appellant/defendant, I have gone through the identification of the property as per Ext.C1(a) plan, plot No.1 in old Sy.Nos.488/4, 490/2A and 489/1A in Re.Sy.No.17/25, is located as 28.71 Ares as per description in partition deed No.731/88, marked as Ext.A1. Plot No.2, having an extent of 01.57 Ares of property in old Sy.No.488/4 and in Re.Sy.No.17/25, is located as the B schedule item, now in possession of the defendant and covered by Ext.A1. At the same time, as per Ext.C1(a), property of the defendant based on partition deed No.2119/2010, marked as Ext.A3 and based on partition deed No.829/1/87 marked as Ext.A4 also identified as property, having an extent of 28.90 Ares instead of 25.85 Ares. 11. Insofar as the contention raised by the ``` RSA NO. 615 OF 2023 6 ``` appellant/defendant is concerned, the first step ought to have been taken by the appellant/defendant is filing a proper objection in detail, pointing out the anomalies in Exts.C1 and C1(a) with cogent reasons, to hold that the same could not be relied on. In this case, as rightly pointed out by the learned counsel for the appellant/defendant, the learned Munsiff observed that no objection filed against Exts.C1 and C1(a), but in fact, an objection was filed, as observed by the appellate court in paragraph No.21 of the appellate judgment. The appellate court found that, though an objection was filed, the same in no way pointed out the mistakes in Ext,C1 commission report and Ext.C1(a) plan and the mistakes committed by the trial court in accepting the same. According to the First appellate court, only a vague allegation raised in the objection. 12. In view of this finding, I have perused copy of the objection placed by the learned counsel for the appellant/defendant. On perusal of the same, the only objection raised is that the property of the defendant was not located in the plan. But, as I have already observed, the property of the defendant has been identified and located as plaint No.3. Apart ``` RSA NO. 615 OF 2023 7 ``` from the said objection, no serious objection raised before the trial court pointing out anomalies which would go the root of the matter, to accept Ext.C1 and Ext.C1(a). Since the appellant/defendant miserably failed to point out flaws or anomalies in Ext.C1 and Ext.C1(a), after examining the commissioners as CW1 and CW2, the defendant could not succeed in challenging the same at the second appellate stage. It is at this juncture, the trial court as well as the appellate court accepted the same and granted decree, acting on the same, as hereinabove referred. 13. On perusal of the available materials, the trial court as well as appellate court rightly found title of the plaintiff, relying on Ext.A1 partition deed and given emphasis on Ext.C1 and Ext.C1(a) to identify the plaint A and B schedule properties as well as the property of the defendant without any ambiguity. 14. Viewed so, in this case, the learned counsel for the appellant/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**_ ``` RSA NO. 615 OF 2023 8 ``` _**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.”_ 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, ``` RSA NO. 615 OF 2023 9 ``` 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. 16. 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_ ``` RSA NO. 615 OF 2023 10 ``` _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 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_ ``` RSA NO. 615 OF 2023 11 ``` _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 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_ ``` RSA NO. 615 OF 2023 12 ``` _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 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_ ``` RSA NO. 615 OF 2023 13 ``` _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._ 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 ``` RSA NO. 615 OF 2023 14 ``` 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. 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, this second appeal is found to be meritless and the same is dismissed, without being admitted. Sd/- **A. BADHARUDEEN JUDGE** Bb