Jayaraman v. Rajan @ Raju (RSA Nos. 1326/2014 and 1327/2014)

# **`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. 1326 OF 2014`** ``` AGAINST THE JUDGMENT IN A.S.NO.41/2011 OF SUB COURT,KATTAPPANA ``` ``` O.S.NO.221/2009 OF MUNSIFF COURT,KATTAPPANA ``` ## **`APPELLANT/APPELLANT/DEFENDANT:`** ``` JAYARAMAN AGED 40 YEARS S/O.KRISHNAMOORTHY,AMBALAMEDU,PULIYAMALA KARA,KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK,IDUKKI DISTRICT. ``` ``` BY ADV SRI.A.C.DEVASIA ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` RAJAN @ RAJU AGED 35 YEARS S/O.KRISHNAMOORTHY,SYNDICATE HOUSE,PULIYAMALA KARA,KATTAPPANA VILLAGE,UDUMBANCHOLA TALUK,IDUKKI DISTRICT-685508. ``` ``` BY ADV SRI.S.SACHITHANANDA PAI ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2023 ALONG WITH RSA NO.1327/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NOS. 1326 & ``` ``` 1327 OF 2014 2 ``` ``` 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. 1327 OF 2014 ``` ``` AGAINST THE JUDGMENT IN A.S.NO.40/2011 OF SUB COURT,KATTAPPANA O.S.NO.1/2010 OF MUNSIFF COURT,KATTAPPANA ``` ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` JAYARAMAN AGED 40 YEARS S/O KRISHNAMOORTHY, AMBALAMEDU, PULIYAMALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS. SRI. A.C.DEVASIA MATHEW DEVASSI ``` ## **`RESPONDENT/RESPONDENT/5TH DEFENDANT:`** ``` 1PUKAZHENTHI AGED 37 YEARS S/O PICHAPILLAI, RESIDING NEAR SUBRAMANIYA TEMPLE, AMBALAMEDU, PULIYANMALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA THALUK-685508.(DELETED) 2KOMALA AGED 30 YEARS W/O PUKAZHENTHI, RESIDING NEAR SUBRAMANIYA TEMPLE, AMBALAMEDU, PULIYANMALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA THALUK-685508.(DELETED) 3KARANTHAMALI AGED 28 YEARS NEAR SUBRAMANIYA TEMPLE, AMBALAMEDU, PULIYANMALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA THALUK- 685508.(DELETED) ``` ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 3`** ``` 4UMA AGED 28 YEARS W/O KARANTHAMALI, NEAR SUBRAMANIYA TEMPLE, AMBALAMEDU, PULIYANMALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA THALUK-685508.(DELETED) ``` ``` (RESPONDENTS 1 TO 4 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 16.08.2023 IN IA 1/2023 IN RSA 1327/2014) ``` ``` 5RAJAN AGED 35 YEARS S/O KRISHNAMOORTHY, SYNDHIKATTIL, AMBALAMEEDU, PULIYAMALA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT-685508 ``` ``` R5 BY ADV S.SACHITHANANDA PAI ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09.10.2023 ALONG WITH RSA NO. 1326 OF 2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NOS. 1326 & ``` ``` 1327 OF 2014 4 ``` ## **JUDGMENT** Dated this the 9[th] day of October, 2023 R.S.A.No.1326/2014 is one filed by one Jayaraman, who is the plaintiff in O.S.No.1/2010 and the sole defendant in O.S.No.221/2009 on the files of the Munsiff Court, Kattappana. He also filed R.S.A.No.1327/2014, challenging the decree and judgment in O.S.No.221/2009 on the files of the Munsiff Court, Kattappana. 2. I shall refer the parties in these appeals as 'Jayaraman' and 'Rajan@Raju' for convenience. 3. In this case, two suits were jointly tried by the Munsiff Court. Out of the same, O.S.No.221/2009 was one filed by Rajan@Raju, who is the brother of Jayaraman. Jayaraman is the defendant in the said case. The second suit, viz., O.S.No.1/2010 was one filed by Jayaraman as plaintiff against defendants 1 to 5 therein. According to Jayaraman, defendants 1 to 5 in O.S.No.1/2010, were the tenants of the plaint schedule building and the prayer in this suit was to get them ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 5`** evicted. Rajan@Raju asserted title over 3.55 Ares of land property comprised in Sy.No.19/1 (Re.Sy.No.159/19) of Kattappana Village, on the basis of patta No.898/93 arose out of L.A.proceedings No.8/93/KP, initiated by Special Tahsildar, L.A, Kattappana. In the said property, a house is situated, bearing Door No.K.P X/455 (Old No.XIII/354). 4. According to Rajan@Raju, since he is the owner of the plaint schedule property, he is entitled to declare his title over the plaint schedule property and to get vacant possession of the same from Jayaraman. That apart, prohibitory injunction against further trespass also sought for. 5. Whereas, the case put up by Jayaraman in both suits is that, he is the owner in possession of the property and the house was in his name. According to Jayaraman, the Assessment Register in relation to the house situated in the plaint schedule property is in his name and he had paid electricity bills and water bills etc., pertaining to the building. 6. The learned Munsiff jointly tried both suits. PW1 and PW2 were examined on the side of Rajan@Raju, the ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 6`** plaintiff in O.S.No.221/2009 and Exts.A1 to A7 were marked. DW1 was examined and Exts.B1 to B4 were marked on the side of Jayaraman. Exts.C1, C1(a), C2 and C2(a) were marked as court exhibits. 7. It is zealously argued by the learned counsel for the appellant/Jayaraman that, as per Ext.A5, certified copy of L.A file No.80/93 issued from Public Information Officer, Taluk Office, Udumbanchola, the patta in the name of Rajan@Raju would not confer title upon him. Relying on Ext.A3, copy of order of assignment on Registry and Ext.B1, certified copy of assessment Register, issued by Kattappana Grama Panchayath Secretary, Ext.B2 series electricity bill and receipt, Ext.B3 series water supply bills in the name of Jayaraman, it is argued that, Ext.A1 patta would not confer title upon Rajan@Raju. Similarly, he has placed reliance on Ext.A6 patta in the name of Jayaraman, vide patta No.154/93. It is discernible that Rajan@Raju claimed title over the plaint schedule property on the basis of Ext.A1 patta No.898/93 issued in his favour. Thereafter, he had paid land tax as per Ext.A2. In fact, the ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 7`** courts below found, based on Ext.A1 patta that, Rajan@Raju perfected title over the plaint schedule item and therefore, mere assessment of the building in the name of Jayaraman and payment of electricity bills or water charges by Jayaraman, would not confer title upon him. On the said basis, suit was decreed as under: _“In the result, O.S: 221/09 is decreed and the title of the plaintiff over the plaint schedule property is declared. The defendant is directed to give vacant possession of the plaint schedule property to the plaintiff within 2 months of the date of this decree. Defendant is also restrained by a decree of perpetual injunction from further trespassing into the plaint schedule property, committing any act of waste therein and from doing anything which will adversely affect the plaintiff's peaceful possession and enjoyment of the schedule property. O.S: 1/10 is dismissed. The plaintiff in O.S: 221/09 is entitled to recover the entire costs in both the proceedings from the defendant.”_ 8. Eventhough appeals were preferred before the Sub Judge's Court, Kattappana, vide A.S.Nos.40/2011 and 41/2011, the learned Sub Judge also dismissed the appeals. ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 8`** 9. In these matters, it could be gathered that the title claimed by Rajan@Raju, based on Ext.A1, is not challenged in any manner before the appropriate forum (i.e. the appellate authority under the Kerala Land Reforms Act). Therefore, the conclusive nature of patta, which would confer title to Rajan@Raju over the plaint schedule property, is not under challenge. In the said circumstances, the trial court as well as the appellate court rightly granted decree in favour of Rajan@Raju, declaring his title over plaint schedule property, while dismissing the suit filed by Jayaraman as O.S.No.1/2010. The said finding, relying on Ext.A1 is perfectly in order. 10. In these cases, the learned counsel for the appellants viz., Jayaraman failed to raise any substantial question of law warranting admission of these second appeals as mandated under Order XLII Rule 2 r/w Section 100 of the C.P.C. 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_ ``` RSA NOS. 1326 & ``` ``` 1327 OF 2014 9 ``` _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 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 ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 10`** 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 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_ ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 11`** _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 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_ ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 12`** _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_ ``` RSA NOS. 1326 & ``` ``` 1327 OF 2014 13 ``` _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 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_ ``` RSA NOS. 1326 & ``` ## **`1327 OF 2014 14`** _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 – 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 ``` RSA NOS. 1326 & ``` ``` 1327 OF 2014 15 ``` 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 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. ``` RSA NOS. 1326 & ``` ``` 1327 OF 2014 16 ``` 15. In view of the above fact, no substantial question of law arises in these matters to be decided by admitting these appeals. In the result, these appeals are found to be meritless and the same are dismissed without being admitted. Sd/- **A. BADHARUDEEN JUDGE** Bb