Manikkoth Pradeep Kumar v. Mini

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945** **RSA NO. 443 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 13.12.2022 IN A.S.NO.41/2020 ON THE FILE OF 1ST ADDITIONAL DISTRICT JUDGE, KOZHIKODE WHICH IS ARISING OUT OF JUDGMENT AND DECREE DATED 20.12.2019 IN O.S.NO.751 OF 2016 ON THE FILE OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-II** ## **APPELLANT/APPELLANT/DEFENDANT:** **MANIKKOTH PRADEEP KUMAR AGED 54 YEARS, S/O. RAGHAVAN VADAKKOTTIL GEETHAM NIVAS, PO. KOMMERI, VALAYAND AMSOM, KOMMER DESOM, KOZHIKODE DISTRICT, PIN - 673606** **BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP ANTONY THOMAS NAVJYOTH S. ANJU R S.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **MINI AGED 36 YEARS, W/O. KUPPERI PAYINGATT SURESH, THIRUMANGALATH HOUSE, VALAYAND AMSOM, KOMMER DESOM, KOZHIKODE DISTRICT, PIN - 673606 BY ADVS. M.VIVEK RABINDRANATH V.T.MADHAVANUNNI(K/000329/1983)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A. No. 443 of 2023 2 ## **JUDGMENT** ## **Dated this the 4[th] day of October, 2023** This regular second appeal has been filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure challenging the decree and judgment in A.S. No.41/2020 dated 13.12.2022 on the files of the Court of the 1[st] Additional District Judge, Kozhikode arising from decree and judgment in O.S. No.751 of 2016 dated 20.12.2019 on the files of the Additional Munsiff Court, Kozhikode-II. 2. The appellant herein is the defendant in O.S. No.751 of 2016 and the respondent herein is the plaintiff. 3. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent on admission. 4. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court. R.S.A. No. 443 of 2023 3 5. Precisely the plaintiff's case is that, as per Ext.A11 Jenmam Assignment Deed No.1624/2015 of Chalapuram SRO, the defendant herein sold the entire plaint schedule property along with a building therein. According to the plaintiff, thereafter, the defendant trespassed upon the partly completed building, occupied the same and has been possessing the same in continuation of the said illegal occupation. Since the plaintiff is the title holder in _de jure_ possession of the property, she had filed a suit seeking the relief of mandatory injunction to direct the defendant to vacate himself from the plaint schedule property. Relief of damages for unlawful use and occupation also was claimed along with the prohibitory injunction against further trespass upon the plaint schedule property. 6. The defendant filed written statement and narrated financial transactions in between the plaintiff and defendant along with Saseendran, Raveendrakuruppu and Suresh, while admitting execution of Ext.A11, though it was contended that Ext.A11 was not intended to be executed as a sale deed to confer title. It was contended further that O.S. No.533 of 2016 was filed by the defendant to set aside Ext.A11 and document R.S.A. No. 443 of 2023 4 ## Nos. 260/2000 and 2692/2005, since the said documents were generated by playing fraud. 7. Based on the said plea, the Munsiff Court tried the matter. PW1 examined and Exts.A1 to A11 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B5 marked on the side of the defendant. Finally, the learned Munsiff Court decreed the suit as under: _Issue No. 4:- In the result, suit is decreed as follows-_ _1. Defendant is directed by way of mandatory injunction to vacate himself and all his belongings from plaint schedule property within one month from the date of the order._ _2. Defendant is directed to pay damages for unlawful use and occupation for an amount of 5,000/- from 23.06.2016 till date of its realisation._ _3. Defendant is directed by way of permanent prohibitory injunction from trespassing into plaint schedule property._ _4. Plaintiff is entitled to realise the costs of the suit from the defendant._ 8. Although, the decree and judgment of the trial R.S.A. No. 443 of 2023 5 court were assailed before the Appellate Court, as per judgment in A.S. No.41/2020 dated 13.12.2022, the learned Additional District Judge also dismissed the appeal. 9. At the time of hearing, the learned counsel for the defendant argued that Ext.A11 title deed relied on by the plaintiff to assert title over the plaint schedule property is a sham document executed by fraudulent means. Therefore, the same would not confer title upon plaintiff and in such circumstances, the mandatory injunction and the other reliefs claimed by the plaintiff could not be granted. As such, the trial court as well as the Appellate Court went wrong in granting the said reliefs. 10. Whereas, the learned counsel for the plaintiff submitted that till this date the defendant did not challenge Ext.A11 by filing a suit to set aside the same. Therefore, the legal sanctity of Ext.A11 is intact and acting on the valid title deed of plaintiff, the trial court as well as the Appellate Court found that the plaintiff is the owner of the property and she is entitled to get vacant possession of the same along with damages for use and occupation. 11. On perusal of the copy of written statement filed by R.S.A. No. 443 of 2023 6 the defendant placed by the learned counsel for the defendant, filing of two suits seen narrated. The first suit is O.S. No.472 of 2014 filed for prohibitory injunction against forceful eviction. The 2[nd] one is O.S. No.533 of 2016 alleged to be filed to set aside Ext.A11. However, it is admitted by the learned counsel for the defendant that O.S. No.533 of 2016 was dismissed. No appeal therefrom is so far pending is the submission of the learned counsel for the plaintiff. If so, the challenge against Ext.A11 was negatived by the competent Civil Court and in turn the same is found as a valid sale deed executed for consideration. 12. As per the available materials, it could be gathered that the plaintiff perfected title over the plaint schedule property as per Ext.A11, after challenge raised by the defendant against Ext.A11 by filing a separate suit was dismissed, as I have already observed. Thus, the title claimed by the plaintiff over the plaint schedule items as found by the trial court and confirmed by the Appellate Court would stand and if so, the defendant who is in illegal occupation of the plaint schedule items, is liable to vacate the same, since he has such a legal obligation. Such legal obligation, if failed to be R.S.A. No. 443 of 2023 7 complied, the relief sought for by the plaintiff to grant mandatory injunction is liable to be granted as rightly granted by the trial court and confirmed by the Appellate Court. 13. Going by the facts involved in this case as discussed, there is nothing available to admit and maintain this regular second appeal by formulating a substantial question of law and this Court is of the view that no substantial question of law is involved in this matter to admit and maintain this regular second appeal. 14. 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_ R.S.A. No. 443 of 2023 8 _section 100.”_ 15. 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 subsection 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 R.S.A. No. 443 of 2023 9 it, if it is satisfied that the case involves such question. 16. 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]** , 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_ R.S.A. No. 443 of 2023 10 _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 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_ R.S.A. No. 443 of 2023 11 _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 first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the_ R.S.A. No. 443 of 2023 12 _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._ 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_ R.S.A. No. 443 of 2023 13 _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 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._ 18. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal R.S.A. No. 443 of 2023 14 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 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. 19. 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 R.S.A. No. 443 of 2023 15 be in order. Therefore, the same does not require any interference at the hands of this Court. 20. 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