Krishnanunni v. Sarojini, Sheeja, Sheethu, Subash, Velayudhan Ezhuthachan, Sankara Narayanan Ezhuthachan, Sankara Narayanan Exhuthachan, Omana, Raveendran, Sudhakaran, Suresh, Girish, Padmini, Preethi, Dilli, Mini, Kripa and others (RSA No. 28 of 2024)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ``` RSA NO. 28 OF 2024 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 04.10.2023 IN ``` ``` A.S.NO.103/2021 ON THE FILES OF THE COURT OF THE DISTRICT JUDGE, PALAKKAD AROSE FROM THE ORDER DATED 23.01.2020 IN FDIA NO.1349/2006 IN O.S.NO.141/2004 ON THE FILES OF THE MUNSIFF COURT, CHITTUR ``` ## **`APPELLANT/APPELLANT/RESPONDENT NO.1:`** ``` KRISHNANUNNI AGED 72 YEARS S/O KARUPPAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU, KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678505 ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY MAYA C.P. K.V.ANTONY VIJINA K. ARUL MURALIDHARAN ``` ## **`RESPONDENTS/RESPONDENTS/SUPPLEMENTAL PETITIONER NOS.2 TO 5 &`** ## **`RESPONDENT NOS.2 TO 14:`** - **`1 SAROJINI AGED 59 YEARS`** - **`SAROJINI W/O LATE HARIHARAN, RESIDING AT MARIKOLUMBU, KOODALLUR AMSOM, PALLASENA VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678505`** - **`2 SHEEJA AGED 36 YEARS W/O KUTTAPPAN, RESIDING AT PANAMADAM, THEKKETHARA, PUDUSHERRY VILLAGE, PALAKKAD DISTRICT, PIN - 678703`** - **`3 SHEETHU AGED 33 YEARS W/O RADHAKRISHNAN, RESIDING AT PUTHAN VEEDU, KAIPANCHERY, NEMMARA VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN - 678508`** ``` R.S.A. No. 28 of 2024 ``` ``` 2 ``` - **`4 SUBASH AGED 34 YEARS S/O LATE HARIHARAN, RESIDING AT PULIKAL VEEDU, KOODALLUR AMSOM, PALLASENA VILLAGE, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`5 VELAYUDHAN EZHUTHACHAN AGED 79 YEARS S/O CHATHU EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`6 SANKARA NARAYANAN EZHUTHACHAN AGED 69 YEARS`** - **`S/O SANKARA EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM,CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`7 SANKARA NARAYANAN EXHUTHACHAN AGED 83 YEARS`** - **`S/O ACHUTHAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`8 OMANA AGED 69 YEARS`** ``` W/O KRISHNAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505 ``` - **`9 RAVEENDRAN AGED 52 YEARS S/O KRISHNAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`10 SUDHAKARAN AGED 46 YEARS S/O KRISHNAN EZHUTHACHAN, PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`11 SURESH AGED 40 YEARS`** - **`S/O KRISHNAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`12 GIRISH AGED 31 YEARS`** - **`S/O OMANA, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** ``` R.S.A. No. 28 of 2024 ``` ``` 3 ``` ``` 13PADMINI AGED 72 YEARS W/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM,CHITTUR TALUK, PALAKKAD, PIN - 678505 ``` ``` 14PREETHI AGED 47 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505 ``` ``` 15DILLI AGED 49 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505 ``` - **`16 MINI AGED 42 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 678505`** - **`17 KRIPA AGED 39 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM,CHITTUR TALUK, PALAKKAD, PIN - 678505`** ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 28 of 2024 ``` ``` 4 ``` ## **JUDGMENT** ## **Dated this the 29[th] day of January, 2024** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.103 of 2021 dated 04.10.2023 on the files of the Court of the District Judge, Palakkad whereby the learned District Judge confirmed the order in F.D.I.A. No.1349 of 2006 in O.S. No.141 of 2004 dated 23.01.2020 on the files of the Munsiff Court, Chittur. The appellant herein is the 1[st] defendant and respondents are supplemental petitioners 2 to 5 and defendants 2 to 14 in O.S. No.141 of 2004. 2. Heard the learned counsel for the appellant on admission. Perused the relevant materials including the judgment of this Court in R.S.A. No.1060/2011 and the verdicts under challenge. 3. I shall refer the parties in this appeal with reference to their status before the trial court. ``` R.S.A. No. 28 of 2024 ``` ``` 5 ``` 4. In this matter, suit for partition was filed as O.S. No.141 of 2004. On appreciation of evidence, the trial court allowed partition of the plaint schedule properties excluding portion covered by the tank. On appeal, the Appellate Court also concurred the finding of the trial court, as per the judgment dated 26.02.2011 in A.S. No.162/2006. The matter reached upto this Court and this Court also dismissed the appeal as per the judgment dated 09.08.2019 in R.S.A. No.1060 of 2011 and held that “the preliminary decree is only to be confirmed whatever be the actual extent of the tank; which can be ascertained when the final decree is passed”. It was thereafter, the final decree proceedings started. Accordingly, a Commissioner was appointed and he filed Exts.C1 and C1(a) report and survey plan. 5. As per the Commission report, on measurement the Commissioner found that, 24 cent out of 57 cent is occupied by the tank and 3 cent of property was acquired for the road widening. Accordingly, excluding 27 (24+3) cent, final decree of partition was passed acting on ``` R.S.A. No. 28 of 2024 ``` ``` 6 ``` Exts.C1 and C1(a). 6. While impeaching the concurrent verdicts rendered by the trial court and confirmed by the Appellate Court, inasmuch as the allotment of shares in the final decree proceedings, the learned counsel for the 1[st] defendant/appellant submitted that as per the schedule description, 62 cent of property is the property covered by the tank and therefore, the final decree should have been one in exclusion of 62 cent of property covered by the tank and therefore the trial court and the Appellate Court went wrong in passing final decree ignoring the tenets of the preliminary decree. Accordingly, it is argued that the concurrent verdicts would require interference by this Court by admitting this appeal. 7. While addressing this contention, I have perused the preliminary decree and the judgment of this Court in R.S.A. No.1060/2011 as extracted herein above. On reading the preliminary decree, the same excluded the actual extent of the property covered by the tank, which could be ascertained when the final decree proceedings would be ``` R.S.A. No. 28 of 2024 ``` ``` 7 ``` considered. The learned first Appellate Judge found that the total extent of the plaint schedule property is only 70 cent. In the schedule itself, it has been stated that out of 70 cent, 30 cent is the tank portion, 20 cent is the Paramba, 15 cent is the Nilam and 5 cent has been acquired for the road. The Appellate Court also appraised Exts.C1 and C1(a) report and survey plan, whereby the Commissioner excluded 24 cent of property found as tank and also 3 cent acquired for the road and the remaining property alone considered for effecting partition. 8. Going by copies of Exts.C1 and C1(a) produced by the learned counsel for the appellant, the said observation of the first Appellate Court is exactly correct. No objection raised by the appellant disputing the finding of the Commissioner in locating 24 cent as the area occupied in the tank and 3 cent as the property acquired for the road. The partible nature of the remaining extent of property reported by the Commissioner also not opposed by filing any objection. Thus, the trial court acted upon Exts.C1 and C1(a) for granting final decree, for which no ``` R.S.A. No. 28 of 2024 ``` ``` 8 ``` objection filed by the parties and the first Appellate Court rightly appreciated the contentions and concurred the finding of the trial court. 9. On perusal of the materials available, the Commissioner rightly located the tank portion as 24 cent and excluded same from the purview of partition inclusive of 3 cent acquired for the road in terms of the preliminary decree. Therefore, the concurrent verdicts of the trial court and Appellate Court do not require any interference at the hands of this Court. 10. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular 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 ``` R.S.A. No. 28 of 2024 ``` ``` 9 ``` 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 CPC 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 stipulates that nothing in this sub-section shall be deemed to take away or ``` R.S.A. No. 28 of 2024 ``` ``` 10 ``` 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 reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir Mohamed v. J. Kamala and Others** , 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].** 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, after referring **Santosh Hazari v. Purushottam Tiwari, [2001** ``` R.S.A. No. 28 of 2024 ``` ``` 11 ``` ## **(3) SCC 179]** (three – Judge Bench), 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. 14. 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' 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 ``` R.S.A. No. 28 of 2024 ``` ``` 12 ``` 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. 15. In the instant case, it appears that the concurrent verdicts entered into by the trail court as well as by 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. 16. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require ``` R.S.A. No. 28 of 2024 ``` ``` 13 ``` any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. 17. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All all interlocutory applications pending in this regular second appeal stand dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK