Khader and Fathima v. Haneesh (RSA No. 6 of 2022)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 ``` ``` RSA NO. 6 OF 2022 ``` ``` AGAINST THE JUDGMENT IN A.S.NO.19 OF 2019 ON THE FILES OF THE COURT OF SUBORDINATE JUDGE, PERUMBAVOOR AROSE FROM THE JUDGMENT IN O.S.NO.331 OF 2013 ON THE FILES OF THE COURT OF MUNSIFF, PERUMBAVOOR ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** - **`1 KHADER AGED 52 YEARS, S/O.PAREETH, THALIKKUNNATHU HOUSE, PALLIKKARA KARA, KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT, PIN - 683 565.`** - **`2 FATHIMA AGED 47 YEARS, W/O.KHADER, THALIKKUNNATHU HOUSE, PALLIKAKRA KARA, KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT, PIN - 683 565.`** ``` BY ADVS. K.T.SHYAMKUMAR HARISH R. MENON K.N.ABHA A.G.PRASANTH K.S.SREEJA OASHIN LALAN ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ## **`HANEESH`** ``` AGED 40 YEARS, S/O.PAREETH, KARUMAKAKKATTU HOUSE, PALLIKKARA KARA, KUNNATHUNADU VILLAGE REP. BY HIS POWER OF ATTORNEY HOLDER PAREED, AGED 70, S/O.K.P.MAMMY, KARUMAKKATTU HOUSE, PALLIKKARA, KUNNATHUNADU VILLAGE, ERNAKULAM DISTRICT, PIN - 683 565. BY ADVS. SIRAJ K H JAVED HAIDER ``` ## **`THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON`** ## **`18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` R.S.A. No. 6 of 2022 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 18[th] day of October, 2023** Defendants in O.S. No.331 of 2013 on the files of the Munsiff Court, Perumbavoor are the appellants in this second appeal filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter). They assail decree and judgment in A.S. No.19 of 2019 dated 28.01.2021 on the files of the Subordinate Judge, Perumbavoor arose from decree and judgment in O.S. No. 331 of 2013 dated 30.03.2019 on the files of the Munsiff Court, Perumbavoor. The sole respondent herein is the plaintiff in the above suit and the respondent in A.S. No. 19 of 2019. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondent on admission. 3. Parties in this appeal will be referred as “plaintiff” and “defendants” relegating their status before the trial ``` R.S.A. No. 6 of 2022 ``` ``` 3 ``` court, for easy reference. 4. The plaintiff's case in nutshell is that, he purchased plaint A-schedule property on the strength of sale deed No.1691/12 of SRO, Kuruppumpady. Plaint B-schedule item is the property owned by the 1[st] defendant, lies on the western side of A-schedule property and the same is a property covered by parties in Deed No.1382/92 of SRO, Puthenkurish. According to the plaintiff, a portion of plaint A-schedule was encroached by the 1[st] defendant taking advantage of the absence of the plaintiff in station, since the plaintiff had been abroad. The plaintiff would contend that the defendants trespassed into the western portion of plaint A-schedule property having an extent of 4 metres and constructed a staircase to the roof of defendants' house, on 20.05.2012. At this juncture, a suit was filed for fixation of the western boundary of plaint A-schedule property with that of plaint B-schedule property and recovery of the encroached portion. In the said suit, mandatory injunction directing the removal of structures in the encroached property and subsequent prohibitory injunction against ``` R.S.A. No. 6 of 2022 ``` ``` 4 ``` trespass were sought for. 5. The 1[st] defendant filed written statement denying the allegations in the plaint and also encroachment. According to the defendants, the claim of the plaintiff that western boundary of plaint A-schedule property separating from B-schedule property was lying without separation and the same was to be fixed, etc. could not be justified. Plaintiff had purchased plaint A-schedule property after effecting measurement and after convincing its four boundaries. He had also erected boundary stones on its 4 boundaries. On the basis of those boundary stones and also due to the natural hight difference of plaint A and B schedule properties, the western boundary of plaint A-schedule property could be clearly identifiable and on the southern side of the western boundary of plaint A-schedule property, a portion of granite stone foundation was also constructed. That granite stone foundation if continued up to the northern boundary it would reach at the boundary stone planted on the north-western corner of plaint A-schedule property. The staircase allegedly standing in the plaint C- ``` R.S.A. No. 6 of 2022 ``` ``` 5 ``` schedule property has been constructed 18 years ago. The said staircase is in the continued possession and enjoyment of the defendants. Therefore, the plaintiff would not be entitled to get a mandatory injunction for demolishing the said staircase. Plaint A-schedule property is lying as barren land and the defendants have not done any mischief. 6. Thereafter, the plaint was amended confining the relief of recovery of possession of 34 square metres of property in tune with the commission report. The 1[st] defendant filed additional written statement and opposed the claim over 34 square metres of property. The 1[st] defendant raised an alternative contention that if at all the encroached portion is found to be that of the plaintiff, the 1[st] defendant perfected title by adverse possession over the same. Therefore, none of the reliefs to be granted. 7. The trial court recorded evidence and tried the matter. PWs 1 and 2 examined and Exts.A1 to A6 marked on the side of the plaintiff and DWs 1 and 2 examined and Exts.B1, B2, B2(a), B3 and B4 were marked on the side of the defendants. Commission reports and sketches were ``` R.S.A. No. 6 of 2022 ``` ``` 6 ``` marked as Exts.C1, C1(a), C2, C2(a), C3 and C3(a). 8. The trial court appreciated the evidence after addressing the rival contentions advanced by both sides and finally decreed the suit as under: a) that the blue line having a length of 40.1 metres shown on the western side of plot number 5 of exhibit C2(a) plan is declared as the western boundary of plaint A schedule property (which is the balance remaining property in Ext. A2 after some of its property has gone for the road) separating it from the eastern boundary of plaint B schedule property of 2[nd] defendant. b) that defendants are directed to demolish their structures (part of staircase) situated in the plaint C schedule property which is the plot No. 5 in Ext. C2(a) plan within a period of 2 months from the date of the decree and to surrender the possession of plaint C schedule property to the plaintiff; failing which the plaintiff can demolish the said structures through the process of court under the expense of defendants and get the possession of the plaint C schedule property. c) that defendants and their men are ``` R.S.A. No. 6 of 2022 ``` ``` 7 ``` hereby restrained by means of a permanent prohibitory injunction from trespassing into plaint A schedule property or from committing waste there in or from causing obstruction the plaintiff in putting up boundary demarcation on the Western boundary of plaint A schedule property fixed by this court as stated above. d) Plaintiff is entitled to get cost of the suit from the defendants. e) That exhibit C2(a) plan do form part of the decree. 9. Even though, the decree and judgment of the trial court was assailed before the Sub Court, Perumbavoor, by filing A.S. No.19 of 2019, the learned Appellate Judge also confirmed the decree and judgment of the trial court by dismissing the appeal. 10. While assailing the concurrent verdicts of the trial court as well as the Appellate court, the learned counsel for the defendants submitted that plaint A-schedule property was purchased by the plaintiff as per Ext.A2 sale Deed No. 1691/2012 of SRO Puthencruz and the 1[st] defendant purchased the property as per Ext.B1 sale deed ``` R.S.A. No. 6 of 2022 ``` ``` 8 ``` No.2895/1992 of SRO, Puthencruz. It is submitted that, at present the property is in the name of the 2[nd] defendant. According to the learned counsel for the defendants, soon after purchase of the property by the 1[st] defendant in the year 1992, house and staircase were constructed in the property covered by Ext.B1 within the boundaries and the contention raised by the plaintiff to the effect that the defendants encroached upon a portion of plaint A-schedule property is incorrect. According to him, otherwise the defendants perfected adverse possession over the same. Therefore, the concurrent verdicts of the trial court as well as the Appellate Court would require interference at the hands of this Court by formulating substantial question of law. 11. Opposing this contention, the learned counsel for the plaintiff submitted that, the plaintiff claimed title to plaint A-schedule property strictly in accordance with the title deed description and the Commissioner located 34 square metres in Ext. C2(a) plan as the property covered by Ext.A1, now in possession of the defendants where the ``` R.S.A. No. 6 of 2022 ``` ``` 9 ``` staircase, plaint C-schedule item was constructed. Since the suit filed by the plaintiff is one based on title seeking the recovery of possession, there is no reason to disallow the same and accordingly, the trial court as well as the Appellate Court rightly appreciated the evidence and decreed the suit. That apart, no substantial question of law emerges to be formulated for admitting and maintaining the second appeal. Therefore, the appeal deserves dismissal without being admitted. 12. Before addressing the rival contentions, it is relevant to peruse copy of order dated 29.10.2015 passed by the learned Munsiff, Perumbavoor in I.A. No. 1301 of 2015 in O.S. No.331 of 2013, while remitting back the earlier survey commission report marked as Ext.C3 and C3(a). As per which, the learned Munsiff directed the Commissioner to locate the property as hereunder: In the result, the commission report and plan are remitted back to the commissioner and surveyor for doing following acts: 1. Surveyor shall measureout, identify and locate the total extent of 21 Ares of land ``` R.S.A. No. 6 of 2022 ``` ``` 10 ``` lying in Re-survey 279/14 of Kunnathunadu Village as stated in document No. 1691/2012. 2. Surveyor shall give ladder measurements to calculate the extent of property lying in Re-survey 279/14 as well as to cross-check the measurements. 3. Surveyor shall give a name or number to each offsent points. 4. Thereafter, surveyor shall locate the 8.01 Ares of land in the eastern side of Resurvey 279/14 as stated in document No. 1691/2012 with ladder measurements and offset points so as to calculate extent and to cross-check the measurements. 5. Thereafter, surveyor shall locate the 4.33 Ares of land covered by document No. 1691/2012, on the immediate western side of aforesaid 8.01 Ares as stated in aforesaid document, with ladder measurements and offset points, so as to calculate extent and to cross- check measurements. 6. Thereafter, measure out and locate properties of defendant. 7. Thereafter, surveyor shall show the physical boundaries in existence in the field. 8. It is made clear that property taken ``` R.S.A. No. 6 of 2022 ``` ``` 11 ``` for the construction of road on southern side, shall also be included in conducting measurement, which are stated above. 13. Pursuant to the direction issued as extracted above, Exts.C2 and C2(a) commission report and survey plan were filed showing the lie and nature of the properties of both parties, based on their title deeds. Accordingly, plot No.4 inclusive of the property on the eastern side of E-C blue line is located as the property of the plaintiff as per the title deed description. The property on the west of E-C blue line is located as the property of the defendants as plot No.8 in Ext.C2(a) plan. The encroachment is located as plot No.5 having an extent of 34 square metres. Reading Exts.C2 report and C2(a) plan, it is discernible that plot No.5 is part and parcel of plaint A-schedule property as per the boundaries elicited in the title deed. No objection raised to Exts.C2 and C2(a) at the instance of the defendants disputing the identity as stated in Exts.C2 and C2(a). 14. It is true that claim of adverse possession seen raised in the written statement. However, the 2[nd] defendant ``` R.S.A. No. 6 of 2022 ``` ``` 12 ``` admitted during cross-examination that the property in her possession is the property covered by Ext.B1 title document and not plot No.5. Thus, no evidence adduced to support the claim of adverse possession over the encroached portion though such a contention was raised in the written statement. To the contrary, as per the available evidence, it has been established that plot No.4 is the property of the plaintiff and plot No.8 is the property of the defendants and the boundary of plaint A-schedule with that of plaint B- schedule is E-C blue line. Acting on Ext.C2(a) plan, the trial court fixed the western boundary of A-schedule with that of B-schedule as E-C line and the encroached portion on the western side of E-C line, i.e. plot No.5 was ordered to be recovered by the plaintiff from the possession of the defendants. 15. Summarizing the available materials, it could be gathered that the decree and judgment of the trial court based on the available evidence would justify the finding of the trial court and the Appellate court. 16. Even though the learned counsel for the ``` R.S.A. No. 6 of 2022 ``` ``` 13 ``` appellants/defendants attempted to get this appeal admitted on the submission that there is substantial question of law involved, the learned counsel miserably failed to accomplish his goal. On perusal of the available materials, this Court is of the view that no substantial question of law involved in this matter to admit and maintain this regular second appeal. 17. Thus, in this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 of CPC 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.” 18. Section 100 of CPC provides that, (1) Save as otherwise expressly provided in the body of this Code or by ``` R.S.A. No. 6 of 2022 ``` ``` 14 ``` 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 stipulates 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. 19. In the decision reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others** , the Apex Court held ``` R.S.A. No. 6 of 2022 ``` ``` 15 ``` ## 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 ``` R.S.A. No. 6 of 2022 ``` ``` 16 ``` 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 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 ``` R.S.A. No. 6 of 2022 ``` ``` 17 ``` 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 termed to be an error either of law or of procedure requiring interference in second appeal." ``` R.S.A. No. 6 of 2022 ``` ``` 18 ``` 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. 20. 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 ``` R.S.A. No. 6 of 2022 ``` ``` 19 ``` 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. 21. 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 CPC, 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' ``` R.S.A. No. 6 of 2022 ``` ``` 20 ``` 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 CPC must be complied to admit and maintain a second appeal. 22. In the instant case, it appears that the decree and judgments entered into by the trial court as well as the Appellate Court based on the facts and evidence are found to be in order. Therefore, the same does not require any interference at the hands of this Court. ``` R.S.A. No. 6 of 2022 ``` ``` 21 ``` 23. In this matter, on evaluation of the materials, I have already discussed, no substantial question of law arises for consideration so as to admit this second appeal. It is held further that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. Accordingly, the regular second appeal stands dismissed, without being admitted. ## **Sd/-** **A. BADHARUDEEN** **JUDGE** SK