Kunheedu v. Mymoona and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 RSA NO. 709 OF 2023** **AGAINST THE DECREE AND JUDGMENT IN OS 61/2010 OF MUNSIFF COURT, PARAPPANANGADI DECREE AND JUDGMENT IN AS 22/2016 OF ASSISTANT SESSIONS COURT/SUB COURT, TIRUR** ## **APPELLANT/APPELLANT/DEFENDANT:** KUNHEEDU, AGED 65 YEARS, S/O THACHARU PADIKKAL KOLAKKATTIL MUHAMMED ALIAS BAPPU, VENGARA AMSOM, DESOM, S.S.ROAD, VENGARA (PO), TIRURANGADI, MALAPPURAM DISTRICT, PIN – 676304. BY ADVS. DEEPA NARAYANAN K.SUJAI SATHIAN PREETHI. P.V. M.V.BALAGOPAL MARY LIYA SABU GOURI MEEMPAT SANGEETHA SREEKUMAR T.SETHUMADHAVAN (SR.) ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 MYMOONA, AGED 52 YEARS W/O LATE KUNHIMUHAMMED, PULIKKAL HOUSE, VENGARA AMSOM, DESOM,S.S.ROAD,VENGARA (PO), TIRURANGADI, MALAPPURAM DISTRICT, PIN – 676304. _R.S.A No.709 /2023_ 2 2 BUSHRA, AGED 25 YEARS, D/O LATE KUNHIMUHAMMED,PULIKKAL HOUSE, VENGARA AMSOM, DESOM, S.S.ROAD,VENGARA (PO), TIRURANGADI, MALAPPURAM DISTRICT, PIN – 676304. 3 USNATH AGED 23 YEARS D/O LATE KUNHIMUHAMMED,PULIKKAL HOUSE, VENGARA AMSOM, DESOM, S.S.ROAD,VENGARA (PO), TIRURANGADI, MALAPPURAM DISTRICT, PIN – 676304. 4 SHIBILI (MINOR), AGED 13 YEARS S/O KUNHIMUHAMMED, PULIKKAL HOUSE, VENGARA AMSOM, DESOM, S.S.ROAD,VENGARA (PO), TIRURANGADI, MALAPPURAM DISTRICT, REPRESENTED BY THE 1ST RESPONDENT, MOTHER, AS GUARDIAN, PIN – 676304. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.01.2024, THE COURT ON 02.02.2024 DELIVERED THE FOLLOWING: _R.S.A No.709 /2023_ 3 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _R.S.A No.709 of 2023_ _================================ Dated this the 2nd day of February, 2024_ ## _**J U D G M E N T**_ The defendant in O.S.No.61/2010 on the files of Munsiff Court, Parappanangadi, has filed this Second Appeal challenging the decree and judgment in the above Suit dated 23.12.2015 and the decree and judgment in A.S.No.22/2016 dated 12.07.2023 on the files of the Sub Court, Tirur. The plaintiffs are the respondents herein. 2. Heard the learned counsel for the defendant/appellant on admission. 3. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiffs’ and `defendant’ hereafter for easy reference. 4. Perused the verdicts under challenge and the lower court records made available. 5. Suit was filed by the plaintiffs seeking relief of permanent _R.S.A No.709 /2023_ 4 prohibitory injunction restraining the defendant from obstructing use of B schedule way or to annex the same as part of the defendant's property. Later the Suit was amended with additional prayer for mandatory injunction directing the defendant to restore the B schedule pathway since there was demolition of the same during the pendency of the Suit. According to the plaintiffs, B schedule pathway available to the property of the defendant is the only access to plaint A schedule property and the house therein and the plaintiffs had got the right of easement by prescription over the same. Since the defendant attempted to obstruct the same, the present Suit was filed. 6. The defendant filed a written statement denying the entire allegations. The sum and substance of the contention raised by the defendant is that no way as B schedule is available and the same is part and parcel of the property of the defendant. Further, the plaintiffs are having another alternative pathway. The prayer for mandatory injunction incorporated by way of amendment was also resisted contending the alleged demolition of the wall on the northern side of his property as false. _R.S.A No.709 /2023_ 5 7. The trial court ventured the matter. PW1 was examined and Exts.A1 to A8 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B6 were marked on the side of the defendant. CW1 was examined as court witness and Exts.C1 to C12 as well as Ext.X1 were also marked as court exhibits. 8. On evaluation of the evidence, after hearing both sides the trial court granted decree as under: _“23. In the result, OS 61 of 2010 is decreed with costs as follows:_ _1. The defendant and his men are hereby directed to restore the previous position of plaint B schedule property at its entrance about 30 feet, within two months from the date of this judgment, failing which, the plaintiffs are at liberty to restore the previous position of plaint B schedule pathway by his own expenses._ _2. The defendant and his men are also permanently restrained from causing any obstruction to the plaintiff' and others using the pathway and from blocking the pathway and annexing the same with the property of the defendants._ _3. The plaintiffs is allowed to realise the costs of the suit. 4. OS 92 of 2010 is dismissed with costs of the defendant number one.”_ Though the finding of the trial court was assailed in appeal, the appellate court also confirmed the verdict of the trial court and dismissed the appeal. _R.S.A No.709 /2023_ 6 9. While assailing the concurrent verdicts, the learned counsel for the defendant vehemently argued that though on multiple occasions the commissioners visited the plaint schedule property, in none of the reports of the Commissioners, the Commissioners found a way as B schedule available, starting from VengaraAchanambalam road towards east through the defendant's property and reaches upto the plaint schedule property. According to the learned counsel, as per Ext.C2 rough sketch, the way is not shown as one continuous available upto the house of the plaintiff. It is also pointed out that in none of the Commissioner's reports the respective Commissioners never opined availability of B schedule pathway starting from Vengara-Achanambalam road upto the plaint schedule property in any manner. Therefore, the claim of easement by prescription canvassed by the plaintiff is unsustainable. 10. In view of the submission, I have perused Ext.C1 report and Ext.C2 rough sketch. In page 2 of Ext.C1 report, the commissioner categorically stated that plaint B schedule way starts from Vengara-Achanambalam road and is having a width of 2 feet on the south-north direction and on further east the width is only 1 _R.S.A No.709 /2023_ 7 feet. The area having one feet width is at a length of 37 feet. In continuation of the same the width of the way in some area is 3 feet and in some area is 4 feet. It was reported by the Commissioner further that on the southern side of B schedule soil eroded at a depth of 1 ½ feet and walking through this area is difficult. In page 3 of Ext.C1, the commissioner, who visited the plaint schedule property soon after filing of the Suit, reported that B schedule way has been in usage from years back and the same is age old. It was reported further that plaint A schedule property is the end point on the eastern extremity of the B schedule way. So as per the report of the Commissioner, at the time when the Commissioner visited for the first time, B schedule way was found in existence, as described herein above upto plaint A schedule. Indubitably Ext.C2 rough sketch also appended with Ext.C1. Therefore, Ext.C2 sketch need perusal in tune with Ext.C1 report. Thus it could not be held relying on Ext.C2 that the plaint B schedule way is not available upto plaint A schedule, ignoring Ext.C1 report. 11. Commissioner reports and rough sketchs marked in this case include Exts.C1 to C12. It is discernible that after filing of _R.S.A No.709 /2023_ 8 O.S.No.61/2010, one Thacharu Padikkal Kolakattil Mammed also filed O.S.No.92/2010 and both the Suits were tried jointly. Exts.C1 to C6 are the commission reports in O.S.No.61/2010 and Exts.C7 to C12 are the commission reports in O.S.No.92/2010. Exts.C1 and C2 are the commissioner report and sketch filed for the first time, in this matter, as on 15.03.2010 after inspection of the property on 03.03.2010. Exts.C3 and C4 are the outcome of inspection on 09.04.2010 and Exts.C5 and C6 are the report and sketch after inspection of the property on 19.06.2012. Exts.C7 and C8 are the reports in O.S.No92/2010 which were prepared on 05.04.2010. Exts.C9 and C10 are the outcome of inspection on 11.02.2013 and Exts.C11 and C12 are the report and rough sketch prepared after examination of property on 11.10.2014. On perusal of the entire reports, the existence of B schedule as contended in the plaint is well discernible. In this case, Muhammed Mustafa got examined as PW1. On perusal of the evidence tendered by PW1 it could be gathered that PW1 given evidence as power of attorney holder of the plaintiff and who is none other than the son of the plaintiff in O.S.No.61/2010. He deposed as to the title of the plaintiff to the _R.S.A No.709 /2023_ 9 plaint A schedule property on the strength of Ext.A2 title deed which was originated from Ext.A1. Ext.A3 is the tax receipt dated 07.10.2008, Ext.A4 is document No.A4-6098/10 dated 19.06.2010 and Ext.A5 is tax receipt dated 21.06.2010, tendered in evidence through PW1. Exts.C1 to C6 were also marked through him, PW1 affirmed existence of B schedule way, as stated in the plaint. Even though PW1 was effectively cross examined, nothing extracted to disbelieve his version in so far as plaint B schedule way is concerned. The plaintiff in O.S.No.92/2010 also supported the existence of the way. 12. The evidence of the Commissioner as CW1, who authored Exts.C1 to C6, also assumes significance. During chief examination CW1 supported Exts.C1 to C6 and the way located therein having a width of 2 feet on its starting point. He also deposed that there are steps on the entry portion of the house in plaint A schedule and he had shown above steps as dotted line in the sketch. 13. On evaluation of the evidence of the Commissioner along with PW1 and DW1 supported by Exts.C1 to C12 it is emphatically _R.S.A No.709 /2023_ 10 clear that plaint B schedule, as contended by the plaintiffs, was specifically found by the Commissioner and its use in tune with the mandate of Section 15 of the Indian Easement Act, 1882 has been established. In Ext.C1 report the Commissioner also noted the attitude of the wife of the appellant herein when the Commissioner visited the place on 03.03.2010 for the first time. It was reported by the Commissioner that while the Commissioner was inspecting the property, Smt.Suhara, the wife of the defendant abused the plaintiff and slapped on his face twice using the footwear worn by her. 14. On evaluation of the available materials, it is held that the trial court granted decree on rightly evaluating the evidence available and the appellate court confirmed the same for the said reasons. Thus the concurrent verdicts do not require any interference. Therefore, there is no reason to admit and maintain this appeal, since there is no substantial question of law arises to admit and maintain this appeal. 15. In order to admit and maintain a 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 _R.S.A No.709 /2023_ 11 ## 100 of C.P.C. 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722.**_ 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._ 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, _R.S.A No.709 /2023_ 12 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. 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 is found to be meritless and the same is dismissed without being admitted. _R.S.A No.709 /2023_ 13 All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_