Noby Thomas Joseph and Reena Mani v Shanty Noony and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 RSA NO. 18 OF 2024 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.155/2018 OF III ADDITIONAL DISTRICT COURT, THRISSUR AROSE OUT OF THE JUDGMENT AND DECREE IN O.S.NO.3873/2010 OF II ADDITIONAL MUNSIFF COURT,THRISSUR ``` ## **`APPELLANTS/ADDL.APPELLANTS 2 TO 5/DEFENDANTS:`** ``` 1NOONY JOSEPH (DIED) SHANTY NOONY AGED 52 YEARS W/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 2JOSEPH NOONY AGED 31 YEARS S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 3LILLY NOONY AGED 27 YEARS D/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 68003 4FRANCIS NOONY AGED 22 YEARS S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 BY ADVS. MURALIKRISHNAN C ABRAHAM GEORGE JACOB(K/003159/1999) P.USHAKUMARI(K/000806/1998) P.I.RAHEENA(K/283/2015) SHAHNA(K/001380/2023) ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** ``` 1NOBY THOMAS JOSEPH AGED 59 YEARS S/O LATE T.A. JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 ``` ``` RSA NO. 18 OF 2024 & RSA NO. 26 OF 2024 ``` ``` 2REENA MANI AGED 58 YEARS W/O NOBY THOMAS JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, ALONG WITH RSA NO. 26 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 18 OF 2024 & RSA NO. 26 OF 2024 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 RSA NO. 26 OF 2024 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.7/2019 OF III ADDITIONAL DISTRICT COURT, THRISSUR AROSE OUT OF THE JUDGMENT AND DECREE IN O.S.NO.1126/2014 OF II ADDITIONAL MUNSIFF COURT,THRISSUR ``` ## **`APPELLANTS/ADDL.APPELLANTS 2 TO 5/PLAINTIFF:`** ``` 1SHANTY NOONY @ SHARI FRANCIS AGED 51 YEARS W/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 2JOSEPH NOONY AGED 30 YEARS S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 3LILLY NOONY AGED 30 YEARS D/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 4FRANCIS NOONY AGED 21 YEARS S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 BY ADVS. MURALIKRISHNAN C ABRAHAM GEORGE JACOB(K/003159/1999) P.USHAKUMARI(K/000806/1998) P.I.RAHEENA(K/283/2015) SHAHNA(K/001380/2023) ``` ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 4 ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** ``` 1NIMMY JOSEPH AGED 63 YEARS W/O. LATE DR. K.C. JOSEPH, CONVENT ROAD, CHALAKUDY, THRISSUR, PIN - 680307 2NANCY XAVIER SEBASTIAN AGED 55 YEARS W/O. XAVIER SEBASTIAN, 6106, BALSAM DRIVE, MILFOR, OHAIO, U.S.A., PIN - 32187 3DR. NICY JOSEPH AGED 58 YEARS W/O. ROY ABRAHAM, 1110 SOUTH, 112TH PLAZA, OMALA, BEBRASKA, U.S.A., PIN - 32187 4NOBY THOMAS JOSEPH AGED 59 YEARS S/O LATE T.A. JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 5REENA MANI AGED 58 YEARS W/O NOBY THOMAS JOSEPH, THOPPIL HOUSE, PUTHURKKARA, AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, ALONG WITH RSA NO.18 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 18 OF 2024 & RSA NO. 26 OF 2024 ``` ``` 5 ``` ## **COMMON JUDGMENT** Dated this the 1[st] day of February, 2024 R.S.A.No.18/2024 has been filed, challenging the verdict in A.S.No.155/2018 on the files of the Additional District Court-III, Thrissur, arising out of O.S.No.3873/2010 on the files of the Additional Munsiff Court-II, Thrissur. R.S.A.No.26/2024 has been filed, challenging A.S.No.7/2019 on the files of the Additional District Court-III, Thrissur arising out of O.S.No.1126/2014 on the files of the Additional Munsiff Court-II, Thrissur. 2. Heard the learned counsel for the appellants, on admission. 3. The appellants in both cases are the defendants in O.S.No.3873/2010. O.S.No.3873/2010 is one filed by Noby Thomas Joseph and Reena Mani, seeking relief of mandatory injunction, directing the defendants Shanty Noony and others, who have been occupying the plaint schedule building, to vacate the same. According to Noby Thomas Joseph and Reena Mani, the plaint schedule property, originally owned by the mother of ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 6 ``` Noby Thomas Joseph, was transferred in the name of Noby Thomas Joseph and Reena Mani, as per settlement deed No.1763/2002 and sale deed No.1765/2010. 4. Noony Joseph, husband of the 1[st] appellant, is the brother of Noby Thomas Joseph and he resisted the suit and sought the relief of declaration of document Nos.1763/2002 and 1765/2010, as null and void and his contention was that, the mother had no absolute right to transfer the properties covered by the documents, since the mother purchased the property by using the fund of the property sold by the father. 5. The trial court jointly tried both matters, treating O.S.No.3873/2010 as the main case. PW1 to PW4 were examined and Exts.A1 to A16 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B14 were marked on the side of the defendants. Finally, the trial court dismissed O.S.No.1126/2014 and decreed O.S.No.3873/2010, directing the defendants in O.S.No.3873/2010 to vacate from plaint A schedule property and also directed to pay an amount of Rs.3,000/- per ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 7 ``` month from 1.12.2010 towards unauthorized use and occupation. 6. Though the common judgment and decrees rendered by the trial court, were assailed before the appellate court, the appellate court also concurred the finding of the trial court. 7. At the time of admission, the learned counsel for appellants vehemently reiterated the arguments, to upset genuineness of the title deed of Noby Thomas Joseph and Reena Mani. However, the learned counsel failed to substantiate purchase of the plaint schedule property by the mother, using the fund of the father, in any manner, for want of evidence. 8. On perusal of the verdicts under challenge, the courts below addressed the contention raised by Noony Joseph and others to unsettle Ext.B3 settlement deed No.1763/2002 Ext.B5 sale deed No.1765/2010 and for want of evidence, the said contention was negatived, while holding that, Noby Thomas Joseph and Reena Mani perfected title over the plaint schedule property on the strength of Exts.B3 and B5 and the appellants herein, being persons in occupation of the building, were ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 8 ``` directed to vacate the same. On perusal of the verdicts, nothing available to find fault with the finding of the trial court and the appellate court. 9. In this case, in fact, the learned counsel for the appellants 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 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.”_ 10. 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 ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 9 ``` 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, not formulated by it, if it is satisfied that the case involves such question. 11. 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: ``` RSA NO. 18 OF 2024 & ``` ``` RSA NO. 26 OF 2024 ``` ``` 10 ``` _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]** ._ 12. 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 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._ ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 11 ``` 13. 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 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 ``` RSA NO. 18 OF 2024 & ``` ``` RSA NO. 26 OF 2024 ``` ``` 12 ``` to admit and maintain a second appeal. 14. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 15. In the result, this Regular Second Appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this Regular Second Appeal, stand dismissed. 16. The learned counsel for the appellants prayed for grant of one year period to the appellants to vacate the plaint schedule building. Even though grant of time in the absence of the other side at the time of admission of second appeal, is a matter which would require caution, taking into consideration of the fact that the appellants have been residing in the plaint schedule building, I am inclined to grant six months' time, provided the appellants shall deposit the entire arrears towards unauthorized use and occupation granted by the trial court and confirmed by the appellate court, within two weeks from today. The appellants also shall file an affidavit before the trial court, within a period of ``` RSA NO. 18 OF 2024 & ``` ## **`RSA NO. 26 OF 2024`** ``` 13 ``` two weeks from today, undertaking to vacate the building on expiry of six months from today, on deposit of the entire arrears for use and occupation. If no deposit will be effected and no affidavit will be filed within two weeks, as directed, the grace period of six months granted by this Court shall not be available and the decree impugned can be put into execution without waiting for six months. 17. It is made clear that the appellants shall continue to pay fee for use and occupation on completion of every month during the grace period, without fail, to enjoy the grace period of six months, failure to do so, which results in cessation of the grace period and in that event also, execution of the decree shall go, forthwith. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb