RSA No. 1214 of 2019 / Irinjalakuda

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 18[TH] DAY OF SEPTEMBER 2023 / 27TH BHADRA, 1945 ``` ``` RSA NO. 1214 OF 2019 ``` ``` AGAINST THE ORDER/JUDGMENT OS 796/2012 OF ADDITIONAL SUB COURT, ``` ## **`IRINJALAKUDA`** ``` AS 196/2015 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA APPELLANTS/APPELLANTS 1 TO 7 IN AS 196/2015/DEFENDANTS 1 TO 4 AND 6 TO 8 IN OS 796/2012 ``` |`1`|`SHOURIYAR ALIAS XAVIER`| |---|---| ||`AGED 67 YEARS`| ||`S/O. PADAYATTI LONAPPAN, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKKUDY TALUK, TRICHUR`| ||`DISTRICT-680734.`| |`2`|`THRESSIAMMA`| ||`AGED 65 YEARS`| ||`WIFE OF PAPPACHAN, KAYYALA VEEDU, WEST KORATTY DESOM,`| ||`KALLOOR, MAMBRA P.O., TRICHUR DISTRICT-680 308.`| |`3`|`MARIYAMMA`| ||`AGED 63 YEARS`| ||`WIFE OF CHAKKYATH PORINJU, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKKUDY TALUK, TRICHUR`| ||`DISTRICT-680734.`| |`4`|`ANNIE`| ||`AGED 61 YEARS`| ||`DAUGHTER OF PADAYATTI LONAPPAN, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKKUDY TALUK, TRICHUR`| ||`DISTRICT-680734.`| |`5`|`ALPHONSA`| ||`AGED 57 YEARS`| ||`DAUGHTER OF PADAYATTI LONAPPAN, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKKUDY TALUK, TRICHUR`| ||`DISTRICT-680734.`| |`6`|`GEORGE`| ||`AGED 55 YEARS`| ||`SON OF PADAYATTI LONAPPAN, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKKUDY TALUK, TRICHUR`| ||`DISTRICT-680734.`| |`7`|`DARLY`| ||`AGED 52 YEARS`| ||`DAUGHTER OF PADAYATTI LONAPPAN AND WIFE OF DAVIS,`| ||`PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, CHALAKKUDY`| ||`TALUK AND NOW RESIDING AT MANJALI HOUSE, TRICHUR`| ||`DISTRICT, POOVATHUSSERY DESOM, PARAKKADAVU P.O., PIN-`| ``` RSA NO. 1214 OF 2019 ``` ``` 2 ``` ``` 683 579. BY ADVS. A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 6 AND 8 TO 14 AND APPELLANTS 8 TO 13 AND 15 TO 19 IN AS196/2015/DEFENDANTS 6 AND 9 TO 15 IN`** ## **`OS 796/2012:`** |`1`|`FRANCIS`| |---|---| ||`AGED 54 YEARS`| ||`SONE OF LATE PADAYATTI ANTONY, PARAPPURAM DESOM,`| ||`KAKKULISSERY VILLAGE, KUZHOOR P.O., PIN-680734.`| |`2`|`MARY`| ||`AGED 56 YEARS`| ||`DAUGHER OF LATE PADAYATTI ANTONY AND WIFE OF JOSE,`| ||`PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, CHALAKUDY`| ||`TALUK AND NOW RESIDING AT KANAMKUDAM HOUSE,`| ||`KOTTANELLOOR P.O., THRISSUR.`| |`3`|`DAISY`| ||`AGED 52 YEARS`| ||`DAUGHER OF LATE PADAYATTI ANTONY AND WIFE OF JOY,`| ||`PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, CHALAKUDY`| ||`TALUK AND NOW RESIDING AT THANDAPPILLY HOUSE,`| ||`MAMBRA P.O., THRSSUR.`| |`4`|`ALPHONSA`| ||`AGED 46 YEARS`| ||`DAUGHER OF LATE PADAYATTI ANTONY AND WIFE OF`| ||`XAVIER, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE,`| ||`CHALAKUDY TALUK AND NOW RESIDING AT NELLISSERY`| ||`VEEDU, KUZHUR P.O., THRISSUR.`| |`5`|`ANTU`| ||`AGED 59 YEARS`| ||`SON OF PADAYATTI LONAPPAN, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKKUDY TALUK AND NOW`| ||`HAVING ADDRESS AT PADAYATTI TRADERS, ATHINJAL P.O.,`| ||`KANHANGAD, KASARAGOD, PIN-671 315.`| |`6`|`SHAJU`| ||`AGED 47 YEARS`| ||`SON OF PADAYATTI DEVASSI, PARAPPURAM DESOM,`| ||`KAKKULISSERRY VILLAGE, CHALAKUDY TALUK, KUZHOOR`| ||`P.O., THRISSUR.`| |`7`|`ANNAM`| ||`AGED 80 YEARS`| ``` RSA NO. 1214 OF 2019 ``` ``` 3 ``` - `WIFE OF LATE PADAYATTI POULOSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `8 GEORGE AGED 58 YEARS SON OF LATE PADAYATTI POULOSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `9 FRANCIS AGED 48 YEARS SON OF LATE PADAYATTI POULOSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `10 MERCY DAUGHTER OF LATE PADAYATTI POULOSE AND WIFE OF NANGINI THOMAS, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `11 LISSY AGED 54 YEARS DAUGHTER OF LATE PADAYATTI POULOSE AND WIFE OF NANGEMALIL VARGHESE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `12 LAISA AGED 50 YEARS DAUGHTER OF LATE PADAYATTI POULOSE AND WIFE OF INCHIPARAMBIL CHERIAN, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `13 VALSA AGED 52 YEARS DAUGHTER OF LATE PADAYATTI POULOSE AND WIFE OF MUNDANMANI THOMAS, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `14 THRESSIAMMA AGED 79 YEARS WIFE OF PADAYATTI DEVASSY, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `15 MARY LONAPPAN AGED 55 YEARS WIFE OF PATHADAN LONAPPAN, KADUPPASSERY DESOM, VADAMA VILLAG,CHALAKUDY TALUK, PIN-680 683.` - `16 ELSY JOHNSON AGED 52 YEARS WIFE OF KUTTIYIL JOHNSON, KOTTANELLOOR DESOM, KOTTANELLOOR VILLAGE, KOTTANELLOOR P.O., MUKUNDAPURAM TALUK, PIN-680 662.` - `17 ALPHONSA JOHNSON AGED 50 YEARS WIFE OF MENACHERY JOHNSON, MELADOOR DESOM, MELADOOR` ``` RSA NO. 1214 OF 2019 ``` ``` 4 ``` - `P.O., PIN-680 741, KURIVILASSERY VILLAGE, MUKUNDAPURAM TALUK.` - `18 JOY AGED 44 YEARS SON OF PADAYATTI DEVASSY, PARAPPURAM DESOM, KAKKULISSERY VILLAGE, KUZHOOR P.O.PIN-680 734.` - `19 VALSA DAVIS AGED 42 YEARS WIFE OF UTHUSSERY DAVIS, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `20 BEENA JAMES AGED 51 YEARS WIFE OF DEVASSY, CHOVVUKKARAN HOUE, MATTOOR DESOM, MATTOOR P.O., KALADY, PIN-683 574.` - `21 JOY AGED 49 YEARS SON OF LATE JOSE, PADAYATTI HOUSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `22 LAISA AGED 47 YEARS DAUGHTER OF LATE PADAYATTI JOSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `23 BAIJU AGED 44 YEARS SON OF LATE PADAYATTI JOSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734.` - `24 BENNY AGED 43 YEARS SON OF LATE PADAYATTI JOSE, PARAPPURAM DESOM, KAKKULISSERRY VILLAGE, KUZHOOR P.O., PIN-680 734. BY ADVS. SRI.SANTHOSH P.PODUVAL FOR R1 TO R4, R8 & R9 SMT.R.RAJITHA` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.09.2023, THE COURT /ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 1214 OF 2019 ``` ``` 5 ``` ## **`JUDGMENT`** Dated this the 18[th] day of September, 2023 This Second Appeal, filed under Sec.100 read with Order XIV Rule 1 of Code of Civil Procedure (hereinafter referred to as CPC for short), is at the instance of defendants 1 to 4 and 6 to 8 in OS No.796/2012 on the files of Additional Sub Court, Irinjalakkuda. The appellants assail preliminary decree of partition passed in the above suit as per decree and judgment dated 09.07.2015 and also decree and judgment dated 09.01.2019 in AS No.196/2015 on the files of the Additional District Court, Irinjalakkuda. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for respondents 1 to 4, 8 & 9. 3. In this matter, plaintiffs 1 to 4 who are the legal heirs of Antony, (who is the son of Kuriappan and Mariam), filed suit for partition and they claimed 1/5th share in the plaint schedule properties. 4. Defendant Nos. 1 to 12 and 14 to 17 resisted the suit mainly contending that the properties sought to be ``` RSA NO. 1214 OF 2019 ``` ``` 6 ``` partitioned in the Suit, were already orally partitioned, before 36 years, and the parties have been possessing the properties based on the said oral partition. 5. Defendant No.16 defendant filed written statement admitting the plaint averments and paid Court Fees for getting his separate share in the properties. 6. The trial court ventured the matter. PW1 examined and Exts.A1 to A6 were marked on the side of the plaintiffs. DW1 to DW5 examined and Exts.B1 to B7 were marked on the side of the defendants. Exts.C1 to C1(d) were also marked. 7. Finally, the Trial Court appraised the contention as to oral partition and found that the oral partition put up by the contesting defendants was not proved and accordingly, it was found that the properties are partible, whereby preliminary decree as under has been passed: _“1. That the plaint schedule properties shall be divided into 5 equal shares by metes and bounds and the plaintiffs are jointly entitled to get 1/5th share in the plaint schedule properties._ ``` RSA NO. 1214 OF 2019 ``` ``` 7 ``` _2. That the defendants 1 to 8 being the legal heirs of late Lonappan are jointly entitled to get 1/5th share in the plaint schedule properties._ _3. That the defendants 9 to 15 being the legal heirs of late Devassy are jointly entitled to get 1/5th share in the plaint schedule properties._ _4. That the 16[th] defendant is entitled to get 1/5th share in the plaint schedule properties._ _5. That the 17[th] defendant is entitled to get 1/5th share in the plaint schedule properties._ _6. That the plaintiffs as well as the defendants are at liberty to apply for passing final decree.”_ 8. The appellants herein filed AS No.196/2015 before the Additional District Court, Irinjalakkuda and as per judgment dated 09.01.2019, learned Additional District Judge dismissed the appeal and confirmed decree and judgment passed by the trial court. 9. At the time of admission, the learned counsel for the appellants reiterated the contention as regards to oral partition and accordingly pressed for interference in the ``` RSA NO. 1214 OF 2019 ``` ``` 8 ``` concurrent verdicts of the trial court as well as the appellate court. When the learned Counsel was asked to justify oral partition based on evidence, he brought the attention of this Court to paragraph no.17 of the appellate judgment, where the appellate court discussed the nature and lie of the properties, where residential buildings were constructed by the parties in view of the oral partition. On reading of paragraph No.17 of the appellate judgment, it is discernible that the learned appellate judge found that, even though, there were construction of residential buildings and partial construction of basement, the Commission Report did not specifically suggest that the properties were lying separately from other properties or the boundaries separate the shares in tune with the oral partition, as contended by the appellants herein. 10. Therefore, the appellate court also was not inclined to accept the oral partition, as canvassed by the appellants and accordingly, the appeal was dismissed. 11. In this case, there is no dispute between the parties ``` RSA NO. 1214 OF 2019 ``` ``` 9 ``` that property was originally belonged to Kuriachan and Mariam. After their death, Antony succeeded the same. But the dispute is confined in the matter of oral partition as canvassed by the appellants herein and denied by the plaintiffs and defendant No.16. On perusal of the available materials, it could be gathered that no convincing evidence specifying the nature and manner of partition and allotment shares with the exact extent to justify the oral partition of the properties could be gathered and thereby, the trial court as well as the appellate court rightly negatived the contention as regards to oral partition canvassed by the appellants herein. Consequently, preliminary decree of partition was passed. The said finding is perfectly in order. 12. Though, the learned counsel for the appellants was asked to point out substantial question of law involved in this matter to admit the appeal, he miserably failed to point out any substantial question of law. In view of this matter, no substantial question of law arises in this appeal to be admitted and to be decided by this Court. 13. Law regarding admission and maintainability of ``` RSA NO. 1214 OF 2019 ``` ``` 10 ``` ## Second Appeal is well settled. 14. In this case, the learned counsel for the appellant 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.”_ _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 subordinate to the High Court, if the High Court is satisfied that the case involves a substantial_ ``` RSA NO. 1214 OF 2019 ``` ``` 11 ``` _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 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_ ``` RSA NO. 1214 OF 2019 ``` ``` 12 ``` _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],** the Apex Court held that:_ _"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence." "It has been noticed time and again that without insisting for the_ ``` RSA NO. 1214 OF 2019 ``` ``` 13 ``` _statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."_ ``` RSA NO. 1214 OF 2019 ``` ``` 14 ``` _"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."_ _When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by_ ``` RSA NO. 1214 OF 2019 ``` ``` 15 ``` _this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S.100 of the CPC._ ## 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 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. We may only refer to_ _**Santosh Hazari v. Purushottam Tiwari,** [2001 (3) SCC 179] (three – Judge Bench) wherein this Court observed as follows: 12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, means – of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in_ ``` RSA NO. 1214 OF 2019 ``` ``` 16 ``` _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._ 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 ``` RSA NO. 1214 OF 2019 ``` ``` 17 ``` “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. 18. It appears that in a case where the appellants miserably failed to prove the oral partition, the trial court as well as the appellate court found that the properties are partible and accordingly preliminary decree of partition was passed as herein above referred. Since nothing substantiated to admit this appeal by formulating substantial question of law, this appeal deserves dismissal and accordingly the appeal is dismissed. ``` SD/- ``` ## **`A. BADHARUDEEN JUDGE`** Nsd