M. Mathew v. Boby Isaac Mathew and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 1[ST] DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 ``` ## **`RSA NO. 694 OF 2023`** ``` AGAINST JUDGMENT AND DECREE IN AS.NO.52/2019 OF SUB COURT, SULTHAN BATHERY AND THE JUDGMENT AND DECREE IN OS.NO.142/2017 OF MUNSIFF ``` ## **`COURT, KALPETTA`** ## **`APPELLANT/APPELLANT/1ST DEFENDANT:`** ``` M.MATHEW ``` ``` S/O.LATE U.T.MATHEW, AGED 97 YEARS ULLATTIL GARDENS, ACHOORANAM, NOW RESIDING AT DILKUSH, MANIAMCODE,KALPETTA ``` ``` BY ADV MILLU DANDAPANI ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 3 AND DEFENDANTS 2 TO 6:`** `BOBY @ ISAAC MATHEW, S/O.LATE ISSAC, AGED 63 YEARS 1 ULLATTIL HOUSE, PUTHANANGADI P.O., NOW RESIDING AT ULLATTIL HOUSE, NEAR NSS.ENGINEERING COLLEGE, P.O.SASHA NAGAR, PALAKKAD-8 2 EBI ISSAC, S/O.LATE ISSAC, AGED 61 YEARS, ULLATTIL HOSUE, PUTHANANGADI P.O, VELLORKKARA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DT.-679 321` 3 `ISSAC THOMAS @ LEBI, S/O.LATE ISSAC, AGED 59 YEARS ULLATTIL HOUSE, PUTHANANGADI P.O, VELLORIKKARA VILLAGE KOTTAYAM TALUK AND DISTRICT, NOW RESIDING AT KANNUR BRASDESIGNINGS, BELLARD ROAD, KANNUR DT.- 670 001` 4 `MARIKUTTY, W/O.MANIKURIAN, AGED 79 YEARS, KANIYAMPURAM, KANJIKUZHI P.O, KOTTAYAM TALUK AND DISTRICT – 686 004` 5 `BIJU I JOSEPH, S/O.LATE ITTUP SARAMMA, AGED 56 YEARS, PUKADIYIL HOUSE, MANNAR ROAD P.O, KOTTAYAM TALUK AND DISTRICT-686 604` 6 `P.I.MATHEW, S/O.LATE ITTUP AND SARAMMA, PUKADIYIL HOUSE,KAROOVKARA, KOTHAMANGALAM P.O, KOTHAMANGALAM TALUK, ERNAKULAM DIST.- 630 105` 7 `RUBY SCARIA, W/O.SCARIA, AGED 53 YEARS,` ``` RSA NO. 694 OF 2023 2 ``` `D/O.LATE UTTUP AND SARAMMA, PATTAMMADI HOUSE, KOZHIPALLY P.O, VARAPPETTY VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT – 686 691` 8 `SALI BARI K.K, W/O.BISWAJIT BARIKK, AGED 44 YEARS, BARIK BHAVAN, P.O.KARAMIYOD MEENAD VILLAGE, CHATHANOOR, KOLLAM TALUK AND DISTRICT – 691 572` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 694 OF 2023 3 ``` ## **JUDGMENT** Dated this the 1[st] day of December, 2023 This Regular Second Appeal has been filed under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) by the appellant against the judgment and decree in A.S.No.52/2019, dated 30.7.2022 on the files of the Sub Court, Sulthan Bathery, arising out of the judgment and decree in O.S.No.142/2017, dated 30.9.2019 on the files of the Munsiff Court, Kalpetta. 2. The appellant herein is the 1[st] defendant in the above suit. Respondents are the plaintiffs 1 to 3 and defendants 2 to 6. 3. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents, on admission. 4. I shall refer the parties in this appeal as 'plaintiffs' and 'defendants', for convenience. 5. Plaintiffs 1 to 3, who are the children of Ullattil Issac, filed suit for partition, claiming 1/5[th] share over plaint ## **`RSA NO. 694 OF 2023 4`** A and B schedule properties, consequent to death of Chinnamma Mathew, the mother of Ullattil Issac and defendants 1 and 2. Defendants 3 to 5 are the legal heirs of Saramma, who is the daughter of Chinnamma Mathew and 6[th] defendant is the niece of U.M.Thomas, another son born to Chinnamma Mathew. 6. The appellant/1[st] defendant filed written statement and raised contention that plaint B schedule property is not partible and the 1[st] defendant had perfected title by adverse possession over B schedule property. 7. The trial court recorded evidence. PW1 was examined and Exts.A1 to A4(a) were marked on the side of the plaintiffs. DW1 was examined on the side of the defendants. Finally, the claim of adverse possession raised by the 1[st] defendant was negatived and it was found that the properties are partible in between the plaintiffs and defendants. Accordingly, decree was passed, as under: - “ _In the result, the suit is decreed as follows;_ _1. That the plaint A schedule property shall be measured by metes and bounds and to be divided into five equal shares and the plaintiffs are entitled to one of such share._ ``` RSA NO. 694 OF 2023 5 ``` _2. That the 1[st] , 2[nd] and 6[th] defendants are entitled to one of such share each and the defendants No.3 to 5 are entitled to one of such share jointly._ _3. That the plaint B schedule property shall be measured by metes and bounds and to be divided into 4 equal shares and the plaintiffs jointly are entitled to one of such share._ _4. That the 1[st] and 2[nd] defendants are entitled to one of such each and the defendants No.3 to 5 are entitled to one of such share jointly._ _5. Allotments of share to the 1[st] defendant shall be subjected to the payment of requisite court fee._ _6. The costs of the suit shall come out of the estate._ _7. The 6[th] defendant is entitled to allotment of house subject to valuation and the valuation of the building shall be worked out during final decree stage._ _8. The question of share profits is relegated to final decree proceedings with the consent of the parties._ _9. Party who paid court fee shall be entitled to initiate final decree proceedings._ _10. Suit stands adjourned sine dine.”_ 8. The said verdict of the trial court was challenged before the appellate court in A.S.No.52/2019 and the appellate court also negatived the contention of the 1[st] ``` RSA NO. 694 OF 2023 6 ``` defendant, on the finding that the claim of adverse possession raised by one co-owner against other co-owners, not at all established and therefore, the same could not be found. 9. The learned counsel for the 1[st] defendant reiterated the contentions raised before the trial court as well as the appellate court and attempted to establish right of adverse possession at the instance of the 1[st] defendant. 10. Addressing the submission regarding plea of adverse possession claimed by the 1[st] defendant, particularly with reference to the evidence of the 1[st] defendant, who was examined as DW1, the trial court found that DW1 admitted in cross-examination that he had been residing at Pozhuthana for more than 40 years and he shifted his residence in the plaint schedule property just before the death of his brother Thomas. He also admitted that, Thomas died at the house situated in the A schedule property. DW1 further admitted that he had been sharing profits out of the estate among the co-owners. Relying on this evidence, the trial court rightly negatived the contention of adverse possession. The appellate court also addressed the ``` RSA NO. 694 OF 2023 7 ``` essentials to perfect adverse possession by ouster and found that the evidence available did not suggest right of adverse possession and ouster claimed by the 1[st] defendant. In view of the matter, the trial court as well as the appellate court concurrently negatived the claim of adverse possession put up by the 1[st] defendant and rightly held that the plaint B schedule property was liable to be partitioned. 11. On perusal of the verdicts under challenge and in view of the discussion held above, the 1[st] defendant's contention, raising adverse possession over the plaint B schedule item, not at all established and as such, the same would not succeed, in any manner. Therefore, the verdicts under challenge, do not require any interference at the hands of this Court. 12. In this case, the learned counsel for the appellant/1[st] 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 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_ ``` RSA NO. 694 OF 2023 8 ``` _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.”_ 13. 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 argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take ``` RSA NO. 694 OF 2023 9 ``` 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. 14. 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 15. 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** ## **(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_ ``` RSA NO. 694 OF 2023 10 ``` _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._ 16. 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 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, ``` RSA NO. 694 OF 2023 11 ``` 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. 17. 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 appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. **Sd/A. BADHARUDEEN JUDGE** Bb