Raichal Varghese @ Ammini and Alexander (deceased) v. Kochurani @ Ali 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. 547 OF 2014** **AGAINST THE DECREE AND JUDGMENT DATED 24.01.2014 IN AS 111/2011 OF SUB COURT, PERUMBAVOOR** **DECREE AND JUDGMENT IN OS 309/2009 OF MUNSIFF COURT, PERUMBAVOOR APPELLANT/APPELLANTS/1ST DEFENDANTS:** **1 RAICHAL VARGHESE @ AMMINI AGED 54 YEARS D/O.ALEXANDER PUTHENPURACKAL HOUSE, R/A.PUNNACKAKUDY PURAYIDATHIL, VENGOLA KARA, ARACKAPADY VILLAGE, ERNAKULAM DIST** **2 ALEXANDER AGED 85 YEARS PUTHENPURACKAL HOUSE, R/A.PUNNACKAKUDY PURAYIDATHIL, VENGOLA KARA, ARACKAPADY VILLAGE, ERNAKULAM DIST(DIED)** **BY ADVS. SRI.C.A.NAVAS SRI.T.K.SASIKUMAR SMT.C.S.SIMI** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF AND ADDL.RESPONDENTS:** - **1 KOCHURANI @ ALI AGED 37 YEARS D/O.RAICHAL, KALLUPARATH, R/A.ASOKA LABOUR QUARTERS, CHOODNY KARA, EDATHALA VILLAGE, ALUVA TALUK, ERNAKULAM DIST** **2 ALICE JOY AGED 52 YEARS W/O.JOY, NELLIMATTATHIL HOUSE, M A COLLEGE P O, MATHIRAPPILLY SUB STATION, KOTHAMANGALAM, ERNAKULAM DISTRICT** - **3 ROBIN PHILIP AGED 26 YEARS S/O.LATE PHILIPPOSE ALEXANDER, PUTHEN PARAMBIL HOUSE, VALAYANCHIRANGARA P O,** **RSA NO. 547 OF 2014** **2** ## **PERUMBAVOOR, ERNAKULAM DIST** **4 BUBY BABU AGED 22 YEARS D/O.LATE PHILIPPOSE ALEXNADER, PUTHENPARAMBIL HOUSE, VALAYANDHIRANGARA P O, PERUMBAVOOR, ERNAKULAM DIST** **BY ADVS. SMT.ASHI SUKUMARAN RAVIVARMA V. SRI.BINU PAUL SRI.B.R.ANEES SRI.D.BIJU SMT.CHARUTHA BHAIJU SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH SRI.R.SASITHARAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 547 OF 2014** **3** ## **JUDGMENT** Dated this the 14[th] day of December, 2023 This regular second appeal has been filed under Section 100 read with Order XL Rule 1 of the Code of Civil Procedure, by defendants 1 and 2, challenging the decree and judgment dated 24.01.2014 in A.S.No.111/2011 on the files of the Sub Court, Perumbavoor, arose out of the decree and judgment dated 26.09.2011 in O.S.No.309/2009 on the files of the Munsiff's Court, Perumbavoor. During the pendency of the first appeal, the 2[nd] appellant died and his legal heirs brought on record as additional respondents 2 to 4. The 1[st] respondent is the plaintiff in the Suit. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the 1[st] respondent. 3. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience. 4. O.S.No.309/2009 was filed by the plaintiff to set aside the settlement deed No.4814/05 of Perumbavoor SRO **RSA NO. 547 OF 2014** **4** executed by one Alexander, who is the 2[nd] defendant in the suit, in favour of the 1[st] defendant, who is one among the daughters of Alexander. According to the plaintiff, as early in the year 1982, Alexander executed a gift deed in favour of the plaintiff vide gift deed No.4778/1982 and thereby the plaintiff perfected title, possession and enjoyment of the plaint schedule property. Therefore, the settlement deed executed by the 2[nd] defendant in favour of the 1[st] defendant after executing the gift deed in favour of the plaintiff is void. Accordingly, reliefs to set aside the above document and prohibitory injunction were sought for. 5. The defendants appeared and resisted the suit, contenting that the gift deed was not accepted by the plaintiff and accordingly, the same has no legal effect. Therefore, the title of the 1[st] defendant over the plaint schedule property, on the strength of settlement deed No.4814/05 of Perumbavoor SRO, became complete. Therefore, none of the reliefs sought for in the plaint were liable to be granted. **RSA NO. 547 OF 2014** **5** 6. The court below ventured the matter and recorded evidence. PW1 to PW3 examined and Exts.A1 to A3 were marked. DW1 and DW2 examined and Exts.B1 to B10 were marked. 7. On hearing both sides, the trial court granted decree as under: _“In the result, the suit is hereby decreed as follows:_ _1. The settlement deed No.4814/05 of SRO, Perumbavoor (Ext.A3) executed by the second defendant in favour of the first defendant is hereby set aside._ _2. The first defendant and her men are hereby restrained from alienating the plaint schedule property or from creating any documents in respect of plaint schedule property or from causing any damage to the house in the plaint schedule property or from preventing the plaintiff from entering the plaint schedule property, or from doing any act detrimental to the plaintiff's title and possession over plaint schedule property._ _3. The parties shall bear their respective costs in the suit._ _4. The office directed to forward a copy of the decree and judgment to the SRO, Perumbavoor as provided_ **RSA NO. 547 OF 2014** **6** _under Section 31(2) of the Specific Relief Act.”_ 8. Though appeal was filed before the appellate court, the appellate court dismissed the appeal, confirming the finding of the trial court. 9. At the time of admission hearing, the learned counsel for the 1[st] defendant submitted that Exts.A1 gift deed No.4778/1982 was not acted upon and therefore, the title of the 1[st] defendant over the plaint schedule property, in view of settlement deed No.4814/05, marked as Ext.A3, became complete. It is argued further that even though as per the available evidence, the property has been in possession and enjoyment of the 1[st] defendant, where she has been conducting a poultry farm, recovery of possession of the same was not sought for and therefore, the suit is hit by Section 34 of Specific Relief Act, 1963. It is also argued that the extent of property described in the plaint is not correct. As such the learned counsel for the defendants pressed for admission of this case. **RSA NO. 547 OF 2014** **7** 10. Dispelling this argument, the learned counsel for the plaintiff submitted that, the specific case put up by the plaintiff before the trial court is that the plaintiff has been in possession of the property, on the strength of Ext.A1 gift deed, and there is no remote evidence that would suggest that the property is not in possession of the plaintiff. Since, after completion of Ext.A1 gift deed in favour of the 1[st] plaintiff, Alexander had no saleable interest over the property, Ext.A3 is void _ab initio_ and the same has no legal effect. Therefore, the title of the plaintiff is well established and on finding title and possession of the plaintiff over the plaint schedule property, the prohibitory injunction granted by the trial court is also liable to be confirmed. Therefore, in this appeal no substantial questions of law involved to admit and maintain the suit. 11. On perusal of the pleadings and evidence available at par with the verdicts of the trial court and appellate court, the plaintiff's case is that at the age of 6, **RSA NO. 547 OF 2014** **8** when the parents of the plaintiff separated, Ext.A1 gift deed was executed by Alexander, who was given custody of the plaintiff, as guardian, on the strength of Ext.A2 divorce deed. After years of execution of Ext.A1, Ext.A3 settlement deed was executed in the year 2005. According to the plaintiff, the plaintiff perfected title on the basis of Ext.A1 and has been in possession and enjoyment of the same. If Ext.A1 is found to be genuine and acted upon, there was no saleable interest for Alexander to execute Ext.A3, eschewing Ext.A1, and if so, Ext.A3 is a void document, which has no binding effect as far as the right of the plaintiff over the plaint schedule property as per Ext.A1 is concerned. On perusal of the trial court judgment, the trial court relied on the evidence of PW1 and PW2, with reference to Exts.A1 and A2, to hold that the gift deed was acted upon and thereby the plaintiff obtained title and possession over the plaint schedule property. The trial court also considered the evidence of DW2, who is none other than the son of the 1[st] defendant, who admitted Ext.A1 **RSA NO. 547 OF 2014** **9** was executed when the plaintiff aged 6 years and accordingly, the trial court granted decree finding title and possession of the plaint schedule property in favour of the plaintiff on the strength of Ext.A1 title deed. 12. On evaluation of the available materials, it could be gathered that Ext.A1 gift deed came into force at the time of divorce of the parents of the plaintiff as per Ext.A2 and the same was acted upon. Even though the learned counsel for the defendants argued at length to convince this Court that the 1[st] defendant has been running a poultry farm in the plaint schedule property and the 1[st] defendant has been in possession and enjoyment of the same, no cogent and convincing evidence available to hold so. Therefore, the bar under Section 34 of the Specific Relief Act has no application in the present case and the said challenge found to be meritless. Regarding some excess land in the schedule description, the same lies within the boundaries of the plaint schedule properties in possession of the plaintiff and as **RSA NO. 547 OF 2014** **10** such, the plaintiff is entitled to get prohibitory injunction. 13. Thus it appears that the trial court rightly granted decree and the same was confirmed by the appellate court. Therefore, the decree and judgment under challenge do not require any interference by this Court. 14. In this case, in fact, the learned counsel for the appellants/defendants 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 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.”_ 15. Section 100 of the C.P.C. provides that, (1) Save **RSA NO. 547 OF 2014** **11** 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, not formulated by it, if it is satisfied that the **RSA NO. 547 OF 2014** **12** case involves such question. ## 16. 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]** ._ 17. 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_ **RSA NO. 547 OF 2014** **13** _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._ 18. 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 **RSA NO. 547 OF 2014** **14** 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. 19. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 20. 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** nkr