Ravindran @ Mani v. Radha and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 RSA NO. 74 OF 2024 ``` ## **`AGAINST THE ORDER/JUDGMENT OS 43/2012 OF MUNSIFF MAGISTRATE,`** ## **`SULTHAN BATHERI`** ## **`AS 30/2020 OF ASSISTANT SESSIONS COURT/SUB COURT / COMMERCIAL`** ## **`COURT (KALPETTA), SULTHANBATHERY`** ## **`APPELLANT/S:`** ``` RAVINDRAN @ MANI AGED 62 YEARS S/O. GOPALAN, KOONAMAKKAL HOUSE, KOZHUVANA, TAZHATHOOR POST, NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595 BY ADVS. R.K.PRASANTH K.G.BALASUBRAMANIAN AMBILY PREMKUMAR JIJO JOSEPH ``` ## **`RESPONDENT/S:`** ``` 1RADHA AGED 70 YEARS W/O. LATE VISWANATHAN NAIR, PADIPARAMBIL HOUSE, KOZHUVANA, CHEERAL VILLAGE AND POST, NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595 2BIJU AGED 47 YEARS S/O LATE VISWANATHAN NAIR, PADIPARAMBIL HOUSE, KOZHUVANA, CHEERAL VILLAGE AND POST, NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595 3BIJOSH AGED 45 YEARS S/O LATE VISWANATHAN NAIR, PADIPARAMBIL HOUSE, KOZHUVANA, CHEERAL VILLAGE AND POST. NENMENI AMSOM, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN - 673595 4BINDU AGED 50 YEARS D/O.LATE VISWANATHAN NAIR, KOUSTHOOBAM HOUSE, CHELAPRAM, MAKKADA, KAKKODI POST, KOZHIKODE DISTRICT, PIN - 673611 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A No.74 of 2024 ``` ``` - 2 - ``` ## **`J U D G M E N T`** ``` The defendants in O.S.No.43/2012 on the files of Munsiff Court Sulthan Bathery has filed this second appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging decree and judgment in the above case which were confirmed by the decree and judgment in AS 30/2020 dated 30.06.2023. ``` ``` 2.Heard the learned counsel for the appellant/ defendant on admission. Perused the verdicts under challenge. ``` ``` 3.In this matter, though it is argued by the learned counsel for the appellant/defendant that, in view of the earlier decree and delivery thereof, the remedy of the plaintiff is under Sec.47 of CPC and therefore the present suit is not maintainable, the Trial Court as well as the appellate Court negatived the contention. ``` ``` 4.In this matter, the plaint schedule property got assigned in favour of the plaintiff by virtue of document NO. 352/1984 of Sulthan Bathery SRO. While ``` ``` R.S.A No.74 of 2024 ``` ``` - 3 - ``` ``` the plaintiff had been in the possession and enjoyment of the same, an agreement of sale had been executed in between plaintiff and defendant. Thus, the defendant occupied the plaint Schedule Property and continued possession. At this juncture, the plaintiff filed OS 73/1999 before the Munsiff Court, Kalpetta which was later transferred to Munsiff Court Sulthan Bhathery and re-numbered as OS 279/2011 and the suit was decreed on 30.03.2003. Thereafter the defendants approached Sub Court Sulthan Bathery and filed As No. 25/2005 along with delay petition of 631 days. When the Appellate Court dismissed the appeal, the matter was taken before this Court in RSA 1423/2013. As per the judgment in RSA, this Court set aside the judgment of the Trial Court and remanded the matter to the Trial Court for fresh disposal. The defendant again was set exparte and an exparte decree was passed. IA 1436/2006 was filed to set aside the exparte decree also Was dismissed. By long process, finally the decree was put in execution and as per A9, the delivery report of Amin in EP3/2005, delivery was affected and ``` ``` R.S.A No.74 of 2024 ``` ``` - 4 - ``` ``` possession of the property was put back to the hands of plaintiff. The suit was necessitated since the defendants again trespassed into the property and dispossessed the plaintiff. ``` ``` 5.In this matter, it is an admitted fact that, there was a sale agreement in between the plaintiff and defendant. But the sale agreement in no way would confer any right upon the vendee and as per Section 55(6)(b) of the Transfer of Property Act the vendee would get a charge on the immovable property agreed to be sold, so as to realise the advance consideration, if any, paid. Further Section 53A of the T.P Act has also no application in the present case. So, the vendee in a contract of sale can enforce the contract seeking the reliefs of specific performance of contract or return of advance of money and sometimes damages. Apart from the said remedies, vendee has no other right available and protected by law. By the time, all the remedies in view of the sale agreement is hopelessly barred by limitation. ``` ``` R.S.A No.74 of 2024 ``` ``` - 5 - ``` ``` 6.In this matter, it is discernible from the judgment of the lower Court that, the defendants raised a contention that there was no physical execution of the decree and the report of the Amin noted as Ext. A9 is incorrect. The defendants also raised a contention that his possession is protected under Sec.53A of the TP Act. In fact, even after execution of the decree in OS No. 279/2001, now also the defendant has been possessing and enjoying the same, after trespassing upon the property and now his status is that of a trespasser, since his possession earlier on the strength of the contract of sale was given a go by Ext.A9 delivery report, effecting delivery in favour of the plaintiff. ``` 7. `It is true that Section 47 of CPC would apply in relation to all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. But in the facts of the case, the Trial Court and the Appellate Court concurrently negatived this contention and` ``` R.S.A No.74 of 2024 ``` ``` - 6 - ``` ``` therefore the said finding does not require interference. Therefore, the Trial Court rightly granted decree and directed the defendants to surrender the vacant possession of the plaint schedule property to the supplemental plaintiffs, within a period of one month from the date of the decree. The Appellate Court also confirmed the same. On perusal of the concurrent verdicts, the same found to be absolutely correct and it could not be held that, in the facts and circumstances of the case, the present suit would not lie, by the interdiction of Sec.47 of CPC. Thus, no substantial questions of law arise to admit and maintain this second appeal. Thus, the concurrent verdicts of the trial court and Appellate Court do not require any interference at the hands of this Court. ``` ``` 8.In view of the above discussion, no substantial question of law emerges 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 ``` ``` R.S.A No.74 of 2024 ``` ``` - 7 - ``` ``` 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.” ``` ``` 9.Section 100 of CPC 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 appeal shall be ``` ``` R.S.A No.74 of 2024 ``` ``` - 8 - ``` ``` 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. ``` ``` 10.In the decision reported in[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] Nazir 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]. ``` ``` 11.In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 ``` ``` R.S.A No.74 of 2024 ``` ``` - 9 - ``` ``` (5) KHC 264 : 2023 (5) KLT 74 SC],it was held, after referringSantosh 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. ``` ``` 12.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 ``` ``` R.S.A No.74 of 2024 ``` ``` - 10 - ``` ``` 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 CPC must be complied to admit and maintain a second appeal. ``` ``` 13.In the instant case, it appears that the concurrent verdicts entered into by the trail court as well as 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. ``` ``` 14.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 ``` ``` R.S.A No.74 of 2024 ``` **==> picture [40 x 8] intentionally omitted <==** ``` 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. ``` ``` Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. ``` ``` 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 ``` ``` SM ```