Purayil Gopalan v. Purayil Vilasini and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,** **1945** **RSA NO. 211 OF 2022** **AGAINST THE DECREE AND JUDGMENT DATED 22.09.2021 IN AS** **17/2019 OF SUB COURT, QUILANDY** **AGAINST THE DECREE AND JUDGMENT IN OS 254/2013 OF MUNSIFF** **COURT, QUILANDY** ## **APPELLANT/APPELLANT/DEFENDANT:** **PURAYIL GOPALAN, AGED 76 YEARS S/O. LATE RARAN, PURAKKATT CHITTAKANTH PARAMBIL, IYYAD AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 673 574. BY ADV SHAMEENA SALAHUDHEEN** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **PURAYIL VILASINI D/O. RARAN, THATTARI, VENGERI AMSOM, DESOM, KOZHIKODE TALUK 673 601. BY ADVS. M.S.AMAL DHARSAN NOEL JACOB(K/003616/2022)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH RSA.212/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NOs. 211 & 212 OF 2022** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 14[TH] DAY OF DECEMBER 2023/23RD AGRAHAYANA,** **1945** **RSA NO. 212 OF 2022** **AGAINST THE DECREE AND JUDGMENT DATED 22.09.2021 IN AS** **16/2019 OF SUB COURT, QUILANDY AGAINST THE DECREE AND JUDGMENT IN OS 225/2012 OF MUNSIFF** **COURT, QUILANDY** ## **APPELLANT/APPELLANT/PLAINTIFF:** **PURAYIL GOPALAN AGED 76 YEARS S/O RARAN, PURAKKATT CHITTAKANTH PARAMBIL, IYYAD AMSOM , DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 574.** **BY ADV SHAMEENA SALAHUDHEEN** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 PURAYIL PENKUTTY D/O RARAN, NEEROTTAYIL, IYYAD AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 574. 2 PURAYIL CHIRUTHAKUTTY, D/O RARAN, KARINHOLAYIL, UNNIKULAM AMSOM, PUNOOR DESOM, KOYILANDY TALUK, PIN-673 574.** **RSA NOs. 211 & 212 OF 2022** **3** - **3 PURAYIL BHASKARAN, S/O RARAN, THEKKE KOORIPPURATH, IYYAD AMSOM, DESOM, KOYILANDY TALUK, PIN-673 574.** - **4 PURAYIL KUTTIMALU, D/O RARAN, MADATHIL VALLIL, SIVAPURAM AMSOM, KARUMALA DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT, PIN-673 612.** - **5 PURAYIL SANTHA, D/O RARAN, KODUVALAN PARAMBATH, KAKKUR AMOSM, DESOM, KOZHIKODE TALUK, PIN-673 613.** - **6 PURAYIL VILASINI, D/O RARAN, THATTARI, VENGERI AMSOM, DESOM, KOZHIKODE TALUK, PIN-673 601.** **BY ADVS.** - **T.U.SUJITH KUMAR FOR R3 M.S.AMAL DHARSAN FO R6 NOEL JACOB(K/003616/2022) FOR R6** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, ALONG WITH RSA.211/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NOs. 211 & 212 OF 2022** **4** ## **JUDGMENT** Dated this the 14[th] day of December, 2023 These regular second appeals have been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908, (hereinafter referred to as 'CPC', for convenience), challenging the common judgment dated 22.09.2021 in A.S.Nos.16/2019 and 17/2019 on the files of the Sub Court, Koyilandy, arose out of the decree and judgment dated 28.02.2017 in O.S.Nos.225/2012 and 254/2013 on the files of the Munsiff's Court, Koyilandy. 2. Heard the legal aid counsel appearing for Sri.Purayil Gopalan (appellant) and the learned counsel for Purayil Vilasini and others (respondents). 3. I shall refer the parties in these regular second appeals as ‘Purayil Gopalan’ and ‘Purayil Vilasini and others’. 4. To be on the crux of the matter, Purayil Gopalan, **RSA NOs. 211 & 212 OF 2022** **5** who is the son of Raran, filed O.S.No.225/2012 and sought the relief of partition of the plaint schedule property after setting aside the settlement deeds marked as Exts.B1, B2, B38 and B39 executed by Raran in favour of the other children, including Purayil Valasini. Purayil Valasini and others resisted the suit at the instance of Purayil Gopalan by asserting title to the entire extent of property covered by Ext.B1 (17 cents) in favour of D3 (Purayil Bhaskaran), Ext.B2 (14 cents) in favour of D4 (Purayil Kuttimalu), Ext.B38 (24.5 cents) in favour of D6 (Purayil Vilasini) and Ext.39 (14 cents) in favour of D5 (Purayil Santha). 5. The trial court ventured the matters jointly, treating O.S.No.225/2012 as the leading case. PW1 examined and Exts.A1 to A20 were marked on the side of the plaintiff. DW1 to DW7 examined and Exts.B1 to B56 were marked on the side of the defendants. Ultimately, the trial court dismissed O.S.No.225/2012 and partly allowed O.S.No.254/2012 and **RSA NOs. 211 & 212 OF 2022** **6** directed Sri.Puryail Gopalan to vacate the plaint schedule premises within six months. Though separate appeals were filed as AS.Nos.16/2019 and 17/2019, the appellate court also dismissed the appeals confirming the verdict of the trial court. 6. The learned legal aid counsel for Sri.Purayil Gopalan argued at length to convince this Court that Raran, the father of Purayil Gopalan, did not allot even one cent of land in favour of Purayil Gopalan and he has been residing at the house situated in the property, having an extent of 24.50 cents, allotted to Purayil Vilasini. According to the learned legal aid counsel for Purayil Gopalan, if the decree of eviction against Purayil Gopalan is executed, he will be sent out and he has no abode of his own. 7. Whereas the learned counsel for Purayil Vilasini and others submitted that Purayil Gopalan challenged the legality of Exts.B1, B2, B38 and B39, whereby Purayil Vilasini and others obtained title as per their respective deeds **RSA NOs. 211 & 212 OF 2022** **7** executed by Raran during his lifetime, and Purayil Vilasini and others proved the execution of the above deeds by examining the witnesses and scribe thereof. Accordingly, the trial court as well as the appellate court rightly negatived the claim of Purayil Gopalan, seeking partition of the properties upholding the titles of Purayil Vilasini and others, on the strength of Exts.B1, B2, B38 and B39 documents. 8. On perusal of the trial court judgment, the trial court meticulously analysed the evidence and found that Raran executed Exts.B1, B2, B38 and B39 in favour of Purayil Bhaskaran, Purayil kuttymalu, Purayil Vilasini and Purayil Santha and they perfected title accordingly in relation to the plaint schedule property. Though Purayil Gopalan challenged the legality of the above documents with a prayer to set aside the documents, the evidence tendered by Purayil Vilasini and others by examining the witnesses in the document and the scribe categorically established its genuineness and **RSA NOs. 211 & 212 OF 2022** **8** accordingly, finding title on the basis of Exts.B1, B2, B38 and B39, the trial court dismissed O.S.No.225/2012 and partly allowed O.S.No.252/2012. The learned appellate Judge also concurred the said finding. 9. On evaluation of materials, there is nothing in this matter to hold that the findings entered by the trial court and confirmed by the appellate court are either erroneous or illegal in any manner and the concurrent verdicts do not require any interference at the hands of this Court by admitting and maintaining this regular second appeal, where no substantial question of law arises to be formulated. 10. In this case, in fact, the learned legal aid counsel for Purayil Gopalan failed to justify 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_ **RSA NOs. 211 & 212 OF 2022** **9** _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.”_ 11. 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 **RSA NOs. 211 & 212 OF 2022** **10** 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. 12. 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]** ._ **RSA NOs. 211 & 212 OF 2022** **11** 13. 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._ 14. 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 **RSA NOs. 211 & 212 OF 2022** **12** 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 to admit and maintain a second appeal. 15. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 16. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. 17. Since it is submitted by the learned legal aid counsel **RSA NOs. 211 & 212 OF 2022** **13** deputed by KELSA for Purayil Gopalan that DLSA, Kozhikode may be directed to arrange some sort of shelter for Purayil Gopalan, the Secretary, DLSA, Kozhikode, is directed to find out a suitable shelter for rehabilitation of Purayil Gopalan exercising the mode known to law to the extent possible within a period of two months and not as a compulsion otherwise. 18. In order to facilitate a decent shifting of the residence of Purayil Gopalan, two months' time is hereby granted to Purayil Gopalan to vacate the premises from today, provided he shall file an affidavit before the trial court within a period of two weeks from today undertaking to vacate the building on expiry of two months from today. If no such affidavit will be filed within two weeks, as directed, the grace period of two months granted by this Court shall not be available to Purayil Gopalan and the decree impugned can be put in execution without waiting for two months. 19. Since Purayil Gopalan is a member of Scheduled **RSA NOs. 211 & 212 OF 2022** **14** Caste Community, as submitted by both sides, the Secretary, Unnikulam Grama Panchayat, has to look into the posting of Purayil Gopalan and give accommodation to him under any schemes available to Schedule Castes and Scheduled Tribes communities, in accordance with law, within a period of three months. 20. All interlocutory orders stand vacated and all interlocutory applications pending in these regular second appeals stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith and also forward a copy of the decree and judgment to the District Collector concerned for realisation of the court fee payable, since the appellant was permitted to institute these second appeals as an indigent person. Further, forward a copy of this judgment to the Secretary, Unnikulam Grama Panchayat, forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr