Madhukumar P v. Sureshan Nair and Subadra

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 12[TH] DAY OF JANUARY 2024 / 22ND POUSHA, 1945** ## **RSA NO. 676 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 30.06.2023 IN AS 96/2019 OF THE ADDITIONAL DISTRICT COURT – V, ERNAKULAM ARISING FROM THE JUDGMENT AND DECREE DATED 16.06.2018 IN O.S NO.1285/2015 OF IST ADDITIONAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANT/APPELLANT/PLAINTIFF:** **MADHUKUMAR P AGED 59 YEARS S/O PADBHANABHAN NAIR, R/AT RAJESWARI BHAVAN, SOUTH THURAVOORP.O., CHERTHALA, PIN - 688532** **BY ADVS. T.S.MAYA (THIYADIL) K.A.SUNITHA** ## **RESPONDENT/1ST RESPONDENT/1ST DEFENDANT:** **1 SURESHAN NAIR AGED 64 YEARS R/AT KARUVELIL HOUSE, POOCHAKKAL P.O., CHERTHALA, PIN - 688526 2 SUBADRA AGED 60 YEARS W/O SURESHAN NAIR, R/AT KARUVELIL HOUSE, POOCHAKKAL.P.O., CHERTHALA, PIN - 688526** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 676 OF 2023** **2** ## **J U D G M E N T** This second appeal is at the instance of plaintiff in O.S.No.1285 of 2015 on the files of the First Additional Munsiff Court, Ernakulam. The plaintiff assails decree and judgment in the above suit dated 14.06.2018 as well as the appellate decree and judgment in A.S.No.96 of 2019 on the files of the Additional District Judge – V, Ernakulam. 2. Heard the learned counsel for the appellant/plaintiff on admission. 3. Parties in the second appeal will be referred as plaintiff and defendants for convenience hereafter. 4. The suit was filed by the plaintiff seeking permanent prohibitory injunction on asserting that plaintiff has been in possession and enjoyment of 'Aswathy Stores & Cool Bar' at Vyttila Junction, bearing No.49/200 A/UA of Kochi Corporation, situated in Poonithura Village, Kanayannur Taluk. 5. According to the plaintiff, the property where the cool bar is situated in puramboke land of the Government and the plaintiff initially constructed a temporary small shed by spending Rs.1,00,000/- in the year 1995 and later renovated the same by spending Rs.5,00,000/- in August, 2000. When the plaintiff **RSA NO. 676 OF 2023** **3** apprehended trespass at the instance of the defendants, present suit for prohibitory injunction was filed. 6. The defendants appeared and filed a written statement. The defendants contended _inter alia_ disputing the claim of the plaintiff. Their specific assertion is that the plaint schedule property is a property covered by Sale Deed No.5197/1988 in the name of the 1[st] defendant and the plaintiff is in permissive occupation of the building. It was contended further that though the plaintiff agreed to surrender vacant possession of the same, he deviated therefrom and filed this suit without bona fides. 7. Accordingly, counter claim was also sought to get vacant possession of the counterclaim schedule property in favour the defendants. 8. The Trial Court ventured the matter. On the side of the plaintiff, PW1 to PW5 were examined and Exts.A1 to A4 were marked. Exts.B1 to B12 were marked on the side of the defendants. Ext.C1 was also marked. 9. The learned Trial Court appraised the evidence to ascertain the rival claims at the instance of the plaintiff and defendants. Ultimately, the Trial Court found that the plaint schedule property is the property of the defendants scheduled in the counterclaim, which was purchased by the 1[st] defendant as **RSA NO. 676 OF 2023** **4** per Sale Deed No.5197/1988, marked as Ext.B2. The Trial Court also appraised production of documents showing payment of tax in respect of the building by the 1[st] defendant in continuation of Ext.B2 sale deed and Ext.B3 series tax receipts showing remittance of tax by the 1[st] defendant. Further Ext.B4 is the notice issued by the Corporation of Cochin in the name of 1[st] defendant demanding payment of property tax in respect of the building. The Trial Court also appraised Ext.B9 series tax receipts of the year 2002, 2003, 2005, 2007, 2013 and 2015 issued in the name of the 1[st] defendant, while dismissing the suit at the instance of the plaintiff and allowing the counter claim. 10. Even though the verdict of the Trial Court has been assailed before the Appellate Court, the Appellate Court was also not inclined to consider the contention at the instance of the plaintiff. The judgment of the Appellate Court in paragraph No.11 found that on evaluation of evidence that the status of the plaintiff is nothing but that of a licensee of the building at the instance of the defendants. Holding so, the appeal was dismissed. 11. In this case, according to the plaintiff - 'Aswathy Stores & Cool Bar' is situated in Government property. Whereas, the defendants would contend that the same is the property covered by Ext.B2 and they also produced documents showing payment of **RSA NO. 676 OF 2023** **5** tax in continuation of their title as per Ext.B2 as already discussed. This is the reason why the First Appellate Court found at the most that the plaintiff is only to be held as a licensee of the building. The prime question arises for consideration is whether the plaintiff established possession over the plaint schedule property and the same as Government Puramboke land. No materials available to see the plaint schedule property as puramboke land. But the evidence would posit that the plaint schedule item is the property covered by Ext.B2. Thus, no independent right otherwise is established, negating Ext.B2 in favour of the 1[st] defendant, as it appears that the plaint schedule property is the property of the 1[st] defendant and the plaintiff being a permissive occupant or in the status of a trespasser is bound to vacate the same. Therefore, the Trial Court rightly dismissed the suit and allowed the counterclaim granting the counterclaim relief in favour of the defendants. The Appellate Court also confirmed the same. In order to admit and maintain a second appeal, substantial question of law should be formulated. 12. In this case, the learned counsel for the appellant/plaintiff 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_ **RSA NO. 676 OF 2023** **6** _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.”_ 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 away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, **RSA NO. 676 OF 2023** **7** 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. 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 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_ **RSA NO. 676 OF 2023** **8** _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 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_ **RSA NO. 676 OF 2023** **9** _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._ ## 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 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 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_ **RSA NO. 676 OF 2023** **10** _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._ 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, second **RSA NO. 676 OF 2023** **11** 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** rp