Mariamma Varghese and Others v. Varghese Joseph and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ``` RSA NO. 636 OF 2023 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 30.09.2022 IN A.S.NO.22/2021 ON THE FILES OF THE COURT OF ADDITIONAL DISTRICT JUDGE-II (SPECIAL), KOTTAYAM AROSE FROM THE DECREE AND JUDGMENT DATED 29.01.2021 IN O.S.NO.291/1995 ON THE FILES OF THE MUNSIFF COURT, CHANGANACHERRRY ``` ``` APPELLANTS/ADDL.RESPONDENTS NOS.9,11,12 AND 14 IN A.S.NO.22/21 ON THE FILES OF ADDL.DISTRICT JUDGE-II (SPECIAL) KOTTAYAM AND DEFENDANTS IN O.S.NO.291/1995 ON THE FILES OF THE MUNSIFF’S COURT, CHANGANACHERRY: ``` - **`1 MARIAMMA VARGHESE AGED 85 YEARS W/O LATE VARGHESE VARGHESE, THOPPIL HOUSE, THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105`** - **`2 BIJUMON.V @ BIJU AGED 50 YEARS S/O LATE VARGHESE VARGHESE, THOPPIL HOUSE, THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105`** - **`3 MOLLY AGED 58 YEARS D/O LATE VARGHESE VARGHESE, THOPPIL HOUSE, THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105`** - **`4 JOSSY AGED 48 YEARS D/O LATE VARGHESE VARGHESE, THOPPIL HOUSE, THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105 BY ADVS. VARGHESE C.KURIAKOSE ALBIN A. JOSEPH AMRITHA.J SUSANTH SHAJI`** ``` R.S.A. No. 636 of 2023 ``` ``` 2 ``` ``` RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 8 AND ADDL.RESPONDENT 10, 13 AND 15 IN A.S.NO.22/21 ON THE FILES OF ADDL.DISTRICT JUDGE-II (SPECIAL), KOTTAYAM AND PLAINTIFFS/DEFENDANT 2 AND ADDL.DEFENDANT 5 TO 10 IN O.S.NO.291/2015 ON THE FILES OF MUNSIFF’S COURT, CHANGANACHERRY: ``` - **`1 VARGHESE JOSEPH AGED 77 YEARS`** - **`S/O VARGHESE, THOPPIL HOUSE THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN - 686105`** - **`2 MARIAMMA SOURIAR AGED 72 YEARS`** - **`THATTASSERY HOUSE, CHANGANACHERRY MAMBUZHAKARY, RAMANKARY VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT, PIN - 689595`** - **`3 TOMY DEVASIA S/O DAVASIA KIZHAKKEPARAMBIL, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686103`** - **`4 SUNNY DEVASIA S/O DAVASIA KIZHAKKEPARAMBIL, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686103`** - **`5 ANTONY DEVASIA S/O DAVASIA KIZHAKKEPARAMBIL, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686103`** - **`6 SOJI DEVASIA @ SOJAN S/O DAVASIA, KIZHAKKEPARAMBIL, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686103`** - **`7 VARGHESE DEVASIA S/O DAVASIA KIZHAKKEPARAMBIL, VAZHAPPALLY EAST VILLAGE, CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686103`** - **`8 VALSAMMA BABY D/O DEVASIA, KULATHINKAL HOUSE, ERAVUCHIRA MURI THOTTACKADU VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN - 686539`** - **`9 JOSE AGED ABOUT 62 YEARS S/O LATE VARGHESE VARGHESE, THOPPIL HOUSE,`** ``` R.S.A. No. 636 of 2023 ``` ``` 3 ``` ||**`THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE`**| |---|---| ||**`CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105`**| |**`10`**|**`LISSAMMA`**| ||**`AGED ABOUT 54 YEARS`**| ||**`D/O LATE VARGHESE VARGHESE, THOPPIL HOUSE,`**| ||**`THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE`**| ||**`CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105`**| |**`11`**|**`JINCY`**| ||**`AGED ABOUT 46 YEARS`**| ||**`D/O LATE VARGHESE VARGHESE, THOPPIL HOUSE,`**| ||**`THRIKKODITHANAM MURI, THRIKKODITHANAM VILLAGE`**| ||**`CHANGANACHERRY TALUK KOTTAYAM DISTRICT, PIN - 686105`**| ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 636 of 2023 ``` ``` 4 ``` ## **JUDGMENT** ## **Dated this the 10[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.22 of 2021 dated 30.09.2022 on the files of the Court of the Additional District Judge-II (Special), Kottayam arose from the decree and judgment in O.S. No.291 of 1995 dated 29.01.2021 on the files of the Munsiff Court, Changanacherry. This second appeal is at the instance of additional respondents Nos.9, 11, 12 and 14 in A.S. No.22/2021, who are the legal representatives of original first defendant by name Sri.Varghese Varghese, who died during the pendency of the first appeal. Respondents herein are the plaintiff and other defendants. 2. Heard the learned counsel for the appellants on admission, after condoning the delay of 272 days in filing the appeal. Perused the lower court records. ``` R.S.A. No. 636 of 2023 ``` ``` 5 ``` 3. I shall refer the parties in this appeal with reference to their status before the trial court. The plaintiff will be referred as “Sri.Varghese Joseph” and the appellants herein, who are the legal representatives of the original first defendant, Sri.Varghese Varghese, will be referred as “Smt. Mariamma Varghese and others”. 4. In this matter, Sri. Varghese Joseph filed suit to declare gift deed No.1459/1990 as null and void in favour of the original first defendant and to fix the boundaries of the same. Recovery of possession also was prayed for. 5. The original first defendant resisted the suit and filed counter claim. Initially, the matter was adjudicated by the trial court and appeal therefrom was dismissed by the First Appellate Court. The matter reached upto this Court by way of R.S.A. No.656 of 2010. This Court considered the matter on merits and in paragraph Nos. 3 and 4 of the judgment dated 22.01.2020, observed as under: “3. Both the courts below concurrently found that Ext.A2 gift deed was validly executed by the father and not vitiated by any of the grounds alleged. At ``` R.S.A. No. 636 of 2023 ``` ``` 6 ``` that time, the father was holding one half right over the property and the beneficiary under Ext.A2 gift deed would step into the shoes of one of the co-owners, their father. A suit for recovery of possession by one coowner against other co-owners is not permissible. As such the plaintiff is not entitled to the grant of relief of recovery of possession. A relief of partition and separate possession would fall under the proviso attached to Section 34 of Specific Relief Act and as such a mere suit for declaration of title will not stand and the same would constitute a substantial question for the purpose of this appeal. 4. At this juncture, the learned counsel for the appellant pressed for a remand of the matter so as to enable the plaintiff to incorporate substantial prayer in the suit. Since the matter fought upto this court, it is not fit and proper to deny an opportunity to the plaintiff. The appeal hence allowed in part and the decree and judgment of both the courts below are set aside without affecting the concurrent finding rendered regarding the due execution of Ext.A2 gift deed by the father ``` R.S.A. No. 636 of 2023 ``` ``` 7 ``` and the matter is remanded back to the trial court, So as to enable the plaintiff to incorporate a prayer for partition and separate possession regarding the one half share held by the mother over the property by metes and bounds. The parties shall appear before the trial court on 17.02.2020. The trial court shall dispose of the matter within a time schedule of six months from the date of appearance of parties. No costs.” 6. After remand, the plaint was amended and parties went on trial. The learned Munsiff, as per judgment dated 29.01.2021, on appreciation of evidence confined to that of PWs 1 to 3 and Exts.A1 to A4 on the side of the plaintiff, DWs 1 and 2 and Exts.B1 to B5(b) on the side of the defendants and Exts.C1 to C3(a), granted decree as under: “In the result, preliminary decree is passed as follows:- 1) Counter claim schedule property shall be divided by metes and bounds into two equal shares of which one share shall be allotted to the counter claim plaintiff ``` R.S.A. No. 636 of 2023 ``` ``` 8 ``` and the remaining one share shall be divided into 5 equal shares of which counter claim plaintiff, plaintiff and defendant Nos.2 to 4 are entitled 1/5 shares each. 2) Counter claim plaintiff is entitled to obtain separate possession over the said one share of counter claim schedule property severing the joint possession of the same through the process of court. 3) Counter claim plaintiff, plaintiff and defendant Nos.2 to 4 are entitled to obtain separate possession over their 1/5 share each by severing the joint possession of the same through the process of court. 4) Share of the parties shall be allotted on payment of court fees. 5) Order as to equity if any can be considered at the stage of the final decree proceedings. Any of the sharers can file an application to pass a final decree. 6) Costs of the suit shall come out of the estate. 7) Case is adjourned sine die.” 7. Challenging the said verdict, A.S. No.22 of 2021 was filed before the Additional District Court (Special), ``` R.S.A. No. 636 of 2023 ``` ``` 9 ``` Kottayam and the learned Additional District Judge-II, as per judgment dated 30.09.2022, interfered the finding of the trial court and modified the decree by allowing the suit and the counter claim as under: “In the result, the appeal is allowed and judgment and decree of the court below are set aside. The suit and counter claim are decreed in part as follows:- (a) Preliminary decree is passed allowing partition of the actual extent of plaint schedule item No.1, 'C' schedule in Ext.A1 available after giving proportionate deduction in the total extent of 'B' and 'C' schedule in Ext.A1 deed into 2 equal shares by metes and bounds and ½ share of the said property shall be given to the share of the legal heirs of first defendant as per Ext. B1 document. The remaining ½ share shall be given to the plaintiff by metes and bounds as per Ext.A1 document. (b) For convenience of enjoyment of the property, ½ share of the plaintiff shall be given on the western side of the share of the 1[st] defendant. (c) Plaintiff and defendants can file ``` R.S.A. No. 636 of 2023 ``` ``` 10 ``` final decree application along with commission application. (d) The metes and bounds of the properties will be decided on the final decree stage. In the facts of the case, no order as to costs.” 8. While assailing the judgment of the Appellate Court, the learned counsel for Smt. Mariamma Varghese and others zealously argued that, the Appellate Court went wrong in interfering with the finding of the trial court and the Appellate Court should not have reduced the extent of property covered by Ext.A1, having an extent of 24 cents, to the available extent, to the tune of 14.82 cents. According to the learned counsel for Smt. Mariamma Varghese and others, as per the order of remand, this Court confirmed the partible nature of 24 cents of property covered by Ext.A2 gift deed. Therefore, the Appellate Court could not be justified in reducing the extent of property on the finding that proportionate reduction of the property should have been made, since it was found on measurement that the property covered by Ext.A1 as that ``` R.S.A. No. 636 of 2023 ``` ``` 11 ``` of the father and mother of the original first defendant is not having an extent of 24 cents. 9. To be on the crux of the issue as to whether this second appeal deserves admission by formulating any substantial question of law, as extracted hereinabove, in paragraph Nos. 3 and 4 of the judgment in R.S.A. No.656/2010, this Court allowed the second appeal in part, whereby the earlier decrees and judgments were set aside, without affecting the concurrent finding rendered regarding the due execution of Ext.A2 gift deed by the father. So the purpose of remand was to consider the prayer for partition and separate possession regarding the one half share held by the mother over the property by metes and bounds in favour of the legal heirs of the mother, in accordance with law. 10. Going by the trial court judgment, where the so called gift deed is read as Ext.A1, it has been stated that as per Ext.A1, the property is 24 cents in extent. But a contention was raised by the plaintiff, Sri. Varghese Joseph, that there is reduction in extent of the property as per the ``` R.S.A. No. 636 of 2023 ``` ``` 12 ``` Ext.A1 deed. Paragraph No.27 of the plaint averments shows that 'C' schedule property is 17 1/4 cents property as per the 'വീഴ്കാട് ' in the Ext.A1. Paragraph No.32(a) of the plaint shows that 'C' schedule property in Ext.A1 is 16 cents as per the 'വീഴ്കാട് ‘. Hence it can be seen that the plaintiff has no specific case with regard to the existing extent of the property and the reduction of the property as claimed by him as 'വീഴ്കാട് ' in the Ext.A1 deed. Plaintiff himself is not sure as to either 17 1/4 cents or 16 cents property which he claims to be partitioned as per ‘വീഴ് കാട് ‘ in 'C' schedule property. Plaintiff has no consistent case with regard to his case as 'വീഴ്കാട് ‘. 11. But the original first defendant, the predecessor of Smt. Mariamma Varghese and others contended that the entire extent of 24 cents in C-schedule is available for partition. Accordingly, the trial court granted decree allowing partition of the entire counter claim schedule property having an extent of 24 cents and allotted 1/5 shares each to the parties. 12. The main grievance of Smt. Mariamma Varghese ``` R.S.A. No. 636 of 2023 ``` ``` 13 ``` and others is the reduction of property done by the First Appellate Court. In paragraph No.31 of the judgment in A.S. No.22/2021, the Appellate Court discussed the reason for reducing the extent of property partible and to grant preliminary decree allowing partition of the actual extent of plaint schedule item No.1, C-schedule in Ext.A1, available after giving proportionate deduction in the total extent of ‘B’ and ‘C’ schedule in Ext.A1 deed into 2 equal shares by metes and bounds. Thereafter, it was held that ½ share of 14.82 cents of property shall be given to the share of the legal heirs of first defendant as per Ext.B1 document and the remaining ½ share shall be given to the plaintiff by metes and bounds as per Ext.A1 document. The discussion in paragraph No.31 of the Appellate Court judgment reads as under: “It is true that the total extent of property as mentioned in Ext.Al is not available and so that the prayer for partition of 24 cents mentioned in the counter claim schedule property is not allowable. It is only possible to partition the 'C' schedule in Ext.A1, which is the ``` R.S.A. No. 636 of 2023 ``` ``` 14 ``` plaint schedule item No.1 and counter claim schedule property considering the actual extent available at present. In that connection, as per Ext.C1(a) sketch, the total extent available is 51.863 cents and hence there is shortage of 38.26% in the total extent. By making proportionate deduction in the 'C' schedule, the remaining extent available for partition is only 14.82 cents, of which, the legal heirs of first defendant are entitled to share by Ext.B1 document and the plaintiff is entitled to remaining . Both the parties did not challenge measurements in Ext.Cl(a) sketch and so that the measurement in Ext.C1(a) sketch can be accepted for finding the actual extent available for partition. So the prayer in the counter claim for partition of the entire 24 cents is not allowable. The legal heirs of first defendant is only entitled to get share of the available extent in the counter claim schedule property and to that extent, the counter claim can be allowed.” 13. The learned counsel for Smt.Mariamma Varghese and others vehemently argued that, the Appellate Court ``` R.S.A. No. 636 of 2023 ``` ``` 15 ``` went wrong in reducing the property available for partition to an extent of 14.82 cents acting on Ext.C1 report and Ext.C1(a) sketch by effecting proportionate reduction and the said course of action should have been adopted during the final decree proceedings. Even though, this argument appears to be impressive at the first blush, on meticulous evaluation of the materials available, the same would depict the fact that the parties are on litigation in so far as common property held by the father and mother, when the first defendant claimed absolute right over C-schedule property/counter claim schedule property on the strength of Ext.A1 gift deed executed by the father alone. Accordingly, this Court found that excluding the ½ share of the father, the gift deed shall not bind the other parties. Therefore, ½ share covered by the gift deed is available for partition. 14. When properties in a compact plot, on measurement, if found to be shortage in extent, the normal practice and practical approach is to adjust the shortage on the entire property proportionally and not to one plot. ``` R.S.A. No. 636 of 2023 ``` ``` 16 ``` Here, the Appellate Court found that the entire extent of property available is 51.860 cents and there is shortage of 38.26% in the total extent. Accordingly, by adjusting proportionate reduction in the C-schedule, the remaining extent available for partition was found only as 14.82 cents, of which the legal heirs of the original 1[st] defendant held entitled to get ½ share on the strength of the gift deed and the plaintiff is entitled to get remaining ½ share. The shortage in extent was found by Commissioner in Ext.C1 report and Ext.C1(a) sketch and nobody raised any objection to the said finding of the Commissioner and Surveyor. So, the facts remain is that, in the case at hand, the property available for partition, in view of the finding of this Court in R.S.A. No.656/2010 is only 14.82 cents. Therefore, the Appellate Court rightly allowed the suit and counter claim in part confining the partible extent of land to the actual extent available. Thus, it appears that the Appellate Court rightly adjudicated the dispute with reference to the available extent of land with certainty to avoid complication during final decree stage and the said ``` R.S.A. No. 636 of 2023 ``` ``` 17 ``` procedure could not be held as impermissible. 15. Having appraised the available materials as extracted, there is no reason to find that the First Appellate Court went wrong in modifying the decree and judgment of the trial court, in any manner. 16. Thus, it appears that no substantial question of law is available 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 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.” 17. Section 100 of CPC provides that, (1) Save as ``` R.S.A. No. 636 of 2023 ``` ``` 18 ``` 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 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. 18. In the decision reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir** ``` R.S.A. No. 636 of 2023 ``` ``` 19 ``` ## **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 appeal has a right to argue that the case in the court did not involve any substantial question of law. The ``` R.S.A. No. 636 of 2023 ``` ``` 20 ``` 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 ``` R.S.A. No. 636 of 2023 ``` ``` 21 ``` 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 ``` R.S.A. No. 636 of 2023 ``` ``` 22 ``` 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 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. 19. 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 ``` R.S.A. No. 636 of 2023 ``` ``` 23 ``` 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 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 ``` R.S.A. No. 636 of 2023 ``` ``` 24 ``` law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. 20. 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 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 ``` R.S.A. No. 636 of 2023 ``` ``` 25 ``` the conditions mentioned in Section 100 read with Order XLII Rule 2 of CPC must be complied to admit and maintain a second appeal. 21. In the instant case, it appears that the judgment entered into 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. 22. 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 any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. 23. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications also stands dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK