Ramakrishnan v. T. Koshy Mathew and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 ``` ## **`RSA NO. 238 OF 2022`** ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.89/2017 OF ADDITIONAL DISTRICT COURT - VI, THIRUVANANTHAPURAM AND O.S.NO.1154/2008 OF ADDITIONAL MUNSIFF COURT (RCC), THIRUVANANTHAPURAM ``` ## **`APPELLANT/APPELLANT/1ST DEFENDANT:`** ``` RAMAKRISHNAN, AGED 73 YEARS S/O. ACHUTHAN, TC 10/475, KRN NIVAS, CHENCHERI MURI, MANNANTHALA, THIRUVANANTHAPURAM- 695 015. ``` ``` BY ADV M.DINESH ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 AND 3:`** ``` 1T.KOSHY MATHEW, S/O. T.K. KOSHY VAIDYAN, THONDAPPURATHU VEEDU, MAINAGAPALLY VILLAGE, KUNNATHU TALUK, KOLLAM, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SRI. JOHN VARGHESE, KATTAKKAL VEEDU, T.C. NO. 13/1606, BURMA ROAD, PATTOM VILLAGE, THIRUVANANTHAPURAM , PIN 695 004. 2SUDHA S, (REMOVED) TC 10/475, CHENCHERI MURI, MANNANTHALA, THIRUVANANTHAPURAM, NOW RESIDING AT RAJ BHAVAN, KEZHAKKEMUKKOLA, LATHA NAGAR, MUKKOLA P.O, THIRUVANANTHAPURAM, PIN 695 015. 3SAVITHRI AMMA, (REMOVED) AGED 67 YEARS D/O. KUNJI AMMA, VATTOLI VEEDU, PUTHUKULANGARA MURI, VELLANAD VILLAGE, THIRUVANANTHAPURAM, PIN 695 541. (RESPONDENTS 2 AND 3 ARE REMOVED FROM THE PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 27.02.2023 IN IA.2/2023.) ``` ``` R1 BY ADVS. R.GOPAN SHAJIN S.HAMEED ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 238 OF 2022 2 ``` ## **JUDGMENT** Dated this the 30[th] day of January, 2024 This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter). First defendant in O.S.No.1154/2008 on the files of the Additional Munsiff Court, Thiruvananthapuram, is the appellant herein and he assails decree and judgment in the above suit, confirmed in A.S.No.89/2017 on the files of Additional District Judge, Thiruvananthapuram. Respondents herein are the plaintiff and the other defendants. 2. It is noticed that, as on 4.5.2022, my learned predecessor ordered, _'Admit. Issue notice'_ . But, the above order was passed without raising any substantial question of law, as mandated under Section 100 r/w Order XLII Rule 1 of the C.P.C. Since no substantial question of law formulated at the time of admitting this appeal, the above order is not legally sustainable. Therefore, the said order stands reviewed and the appeal reverted back to the stage of ``` RSA NO. 238 OF 2022 3 ``` admission. 3. Heard the learned counsel for the appellant/1[st] defendant and the learned counsel appearing for the 1[st] respondent/plaintiff, in detail, on admission. 4. Originally, the suit was filed by the plaintiff, seeking declaration of title, recovery of possession, putting up of boundaries and consequential reliefs. The contention of the plaintiff was that he was the absolute owner of 14 cents of property, described as plaint A schedule, on the strength of sale deed No.2048/1991. The further contention was, plaint B schedule, forming part of plaint A schedule, is an extent of 2 cent included in old survey No.10/27/1 and plaint C schedule is the property, forming part of plaint A schedule trespassed upon by the defendants. 5. The 2[nd] defendant filed written statement and contended that compound wall of the property in possession of the 2[nd] defendant was constructed 30 years back. The 3[rd] defendant also filed written statement, denying trespass upon the plaint B schedule property and putting up of compound wall. ``` RSA NO. 238 OF 2022 4 ``` 6. The trial court ventured the matter. PW1 to PW3 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 to DW3 were examined and Exts.B1 and B2 series were marked on the side of the defendants. Ext.C1, Exts.C2 and C3 series were also marked. The trial court adverted the title, based on the title deed of the plaintiff and identified the properties, relying on Ext.C2(a) plan and finally granted decree as under: _“In the result, suit is decreed with costs_ _1. The title of the plaintiff over the plaint A and B schedule properties is hereby declared and the plaintiff is allowed to recover the plaint C schedule property from the first and second defendants._ _2. The first and second defendants are hereby directed by way of mandatory injunction to demolish the illegal constrictions in plaint C schedule property at their costs. Failing which the plaintiff is allowed to demolish the same and realize the expenses incurred by the plaintiff from the first and second defendants and their assets._ _3. The western boundary of the plaint B schedule property is fixed at HJ line, eastern boundary of the plaint B schedule property is fixed at EF line and KJ line is the north-east boundary of the plaint A schedule property in the Exhibit C2 (a) plan._ ## **`RSA NO. 238 OF 2022 5`** _4. The plaintiff is allowed to put up a brick compound wall with granite foundation on HJ, EF and KJ lines in Exhibit C2 (a) plan._ _5. Exhibit C2 (a) plan shall form part of the decree.”_ 7. Although appeal filed, the same was dismissed by the appellate court while confirming the finding of the trial court. 8. The learned counsel for the 1[st] defendant/appellant argued that there is one anomaly in this matter. According to him, C schedule as per the plaint description is only 400 square links of property, whereas, as per Ext.C2(a), the Commissioner located 780 square links of property as C schedule. The trial court as well as the appellate court granted recovery of possession of C schedule confining to 780 square links in excess of what is scheduled as plaint C Item. The learned counsel also pointed out that a portion of C schedule is the area, now, the house of the 2[nd] defendant, is situated and therefore, the 2[nd] defendant is aggrieved by the decree and judgment. 9. The learned counsel for the plaintiff submitted that ``` RSA NO. 238 OF 2022 6 ``` the plaintiff was abroad and the defendants encroached upon the property and made construction over a portion of the same, identified as C schedule. He also submitted that, as per Ext.A2 sale deed No.2048/1991, the extent of property is 14 cents and the Commissioner located plaint A schedule property as 13.225 cents. Out of which, the Commissioner found 780 square links of property, scheduled as C, is in possession of defendants 1 and 2. Accordingly, after fixing the boundary on the strength of title, trial court granted recovery of possession. He also submitted that there is no reason to disbelieve the title perfected by the plaintiff and identification of the same by the Commissioner as per Ext.C2(a). Therefore, the trial court as well as the appellate court concurrently granted reliefs in favour of the plaintiff and there is no substantial question of law arises to admit and maintain this appeal. 10. On perusal of Ext.A2, the title deed of the plaintiff, and the schedule description in the plaint, the same is property, having an extent of 14 cents, equivalent to 5.67 Ares. As per Ext.C2(a) plan, the Commissioner located plaint ``` RSA NO. 238 OF 2022 7 ``` A schedule property as ABCDEFGHJKLM to A, having an extent of 13.225 cents equivalent to 5.35 Ares, as against 14 cents equivalent to 5.67 Ares covered by Ext.A2. Similarly, the Commissioner located plaint B schedule as plot TREFGHJ to T and also C schedule as plot KTRSGHJ to K, having an extent of 780 square links of land. 11. Going by the evidence relied on by the trial court and appellate court, the title claimed by plaint A schedule property was found on evidence and the said finding appears to be perfectly justified. It is true that the property sought to be recovered scheduled as C, having an extent of 400 square links and the Commissioner located the same as 780 square links. In this connection, it is argued by the learned counsel for the plaintiff that, even though corresponding amendment in C schedule is not carried out in the plaint, 780 square links of property found by the Commissioner in possession of the defendants 1 and 2, is the property covered by Ext.A2 title deed, where declaratory relief was granted by the courts below. It is pointed out that when the title of the plaintiff as per Ext.A2 is found and location of the ``` RSA NO. 238 OF 2022 8 ``` said property as per Ext.C2(a) plan is established, merely because there is shortage in extent in the description of C schedule in the plaint, the decree and judgment granted by the trial court and confirmed by the appellate court need not be interfered and the extent of land ordered to be recovered is the property covered by the title deed of the plaintiff. 12. It is true that, as per the plaint schedule description, plaint C schedule is 400 square links. The Commissioner located the same as 780 square links. Going by Ext.A2 title deed supported by the other evidence relied on by the trial court and the first appellate court, as discussed hereinabove, the title claimed by the plaintiff over plaint A schedule property could be found. Therefore, there is no reason to hold grant of decree and recovery of possession confining the property as per Ext.C2(a) plan, though the same is little bit in excess of the property specifically scheduled as C in the plaint. Thus, it has to be concluded that the trial court rightly declared the title of the plaintiff over plaint A and B schedule properties and allowed recovery of possession of C schedule property by fixing the ``` RSA NO. 238 OF 2022 9 ``` western boundary of the plaint B schedule property as HJ line, eastern boundary of the plaint B schedule property as EF line and KJ line in the north-east boundary of the plaint A schedule property in Ext.C2(a) plan. The trial court also allowed the plaintiff to construct compound wall in the above boundary. 13. In this case, in fact, the learned counsel for the appellant/1[st] defendant 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.”_ 14. Section 100 of the C.P.C. provides that, (1) Save as ``` RSA NO. 238 OF 2022 10 ``` 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 case involves such question. 15. In the decision in **Nazir Mohamed v. J. Kamala** ``` RSA NO. 238 OF 2022 11 ``` ## **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]** ._ 16. 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. 238 OF 2022 12 ``` 17. 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 ``` RSA NO. 238 OF 2022 13 ``` XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 18. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory orders stand vacated and 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** Bb