R.S.A. Nos. 72 of 2024 and 73 of 2024: Krishnankutty and others v. Sivashankara Pillai and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ``` RSA NO. 72 OF 2024 ``` ``` AGAINST THE DEREE AND JUDGMENT DATED 15.06.2023 IN AS NO.2 OF 2021 OF ASSISTANT SESSIONS COURT/SUB COURT, THIRUVALLA ARISING OUT OF THE DECREE AND JUDGMENT DATED 10.12.2020 IN OS NO.330 OF 2011 OF MUNSIFF COURT, THIRUVALLA ``` ## **`APPELLANT/APPELLANT/PLAINTIFF NO.2:`** ``` KRISHNANKUTTY, AGED 64 YEARS, ``` ``` S/O SHANKARAN ACHARI, RESIDING IN THE ADDRESS MARUPPARAMBIL HOUSE, THAZHATHETHIL, KUMBANAD, KADAPRA P O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. ``` ``` BY ADV G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENTS/RESPONDENTS/LEGAL HEIRS OF ORIGINAL DEFENDANT & THE LEGAL HEIRS OF THE FIRST PLAINTIFF:`** ``` 1PANKAJAKSHI, AGED 67 YEARS, W/O APPUKUTTAN, MANNAMTHARA VEEDU, ALUMTHURUTHY P O, KAVUMBHAGHAM VILLAGE, THIRUVALLA P O, PATHANAMTHITTA DISTRICT, PIN – 689547. 2RADHAMANI, AGED 57 YEARS, W/O THANKAPPAN, MADAMPIL VEEDU, ELAMTHUR P O, PATHANAMTHITTA DISTRICT, PIN – 689588. 3RESHMI AGED 40 YEARS D/O SHIVASHANKARA PILLA, RESIDING IN THE ADDRESS KOLLATHALACKAL ALSO KNOWN AS GANESH BHAVAN, KADPRAMURI, KOIPURAM VILLAGE, KADPRA P O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. ``` RSA.Nos.72 & 73 of 2024 2 ``` 4DR. GANESH PILLA, AGED 38 YEARS, S/O SHIVASHANKARA PILLA, RESIDING IN THE ADDRESS KOLLATHALACKAL ALSO KNOWN AS GANESH BHAVAN, KADPRAMURI, KOIPURAM VILLAGE, KADPRA P O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2024 ALONG WITH RSA NO.72 OF 2024, THE COURT ON 01.03.2024 DELIVERED THE FOLLOWING: ``` RSA.Nos.72 & 73 of 2024 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ``` RSA NO. 73 OF 2024 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 15.06.2023 IN AS NO.12 OF 2022 OF ASSISTANT SESSIONS COURT/SUB COURT, THIRUVALLA ARISING OUT OF THE DECREE AND JUDGMENT DATED 29.01.2022 IN OS NO.245 OF 2011 OF MUNSIFF COURT, THIRUVALLA ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS 2 TO 4:`** - **`1 KRISHNANKUTTY, AGED 64 YEARS,`** ``` S/O SHANKARAN ACHARI, RESIDING IN THE ADDRESS MARUPPARAMBIL HOUSE, KADAPRA MURI, KADAPRA P.O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. ``` - **`2 SUJA AGED 53 YEARS W/O KRISHNANKUTTY, RESIDING IN THE ADDRESS MARUPPARAMBIL HOUSE, KADAPRA MURI, KOIPURAM VILLAGE, KADAPRA P.O THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547.`** - **`3 ARAVIND AGED 30 YEARS S/O KRISHNANKUTTY, RESIDING IN THE ADDRESS MARUPPARAMBIL HOUSE, KADAPRA MURI, KOIPURAM VILLAGE, KADAPRA P.O THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547.`** ``` BY ADV G.SREEKUMAR (CHELUR) ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 3:`** ``` 1SIVASHANKARA PILLAI, (DEAD) AGED 74 YEARS S/O KRISHNA PILLA, RESIDING IN THE ADDRESS KOLLATHALACKAL ALSO KNOWN AS GANESH BHAVAN, KADAPRAMURI, KOIPURAM VILLAGE, KADAPRA P O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. ``` RSA.Nos.72 & 73 of 2024 4 ``` 2RESHMI AGED 40 YEARS D/O SHIVASHANKARA PILLA, RESIDING IN THE ADDRESS KOLLATHALACKAL ALSO KNOWN AS GANESH BHAVAN, KADPRAMURI, KOIPURAM VILLAGE, KADPRA P O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. 3DR. GANESH PILLA AGED 38 YEARS S/O SHIVASHANKARA PILLA, RESIDING IN THE ADDRESS KOLLATHALACKAL ALSO KNOWN AS GANESH BHAVAN, KADPRAMURI, KOIPURAM VILLAGE, KADPRA P O, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN – 689547. BY ADV K.K.SATHISH ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2024 ALONG WITH RSA.NO.72 OF 2024, THE COURT ON 01.03.2024 DELIVERED THE FOLLOWING: ``` RSA.Nos.72 & 73 of 2024 5 ## _**A. BADHARUDEEN, J.**_ _**================================** R.S.A Nos.72 of 2024 and 73 of 2024 ================================ Dated this the 1st day of March, 2024_ ## _**J U D G M E N T**_ R.S.A.No.72/2024 is at the instance of plaintiff No.2, Sri Krishnankutty in O.S.No.330/2011 on the files of the Munsiff Court, Cherthala, challenging the decree and judgment in A.S.No.2 of 2021, whereby the verdicts rendered by the Munssiff Court in O.S.No.330/2011 were confirmed. The respondents herein are the original defendant as well as the legal heirs of the 1[st] plaintiff. R.S.A.No.73/2024 is also filed by Krishnankutty and others, challenging the decree and judgment in A.S.No.12/2022, on the files of Sub Judge, Thiruvalla and respondents are the defendants in O.S.No.245/2011 on the files of Munsiff Court, Thiruvalla. 2. Heard the learned counsel for the appellants on admission. Perused the verdicts under challenge as well as the relevant documents RSA.Nos.72 & 73 of 2024 6 ## placed by the learned counsel for the appellants. 3. I shall refer the parties in this appeal as `Krishnankutty and others’ (2[nd] and 3[rd] defendants in O.S.No.245/2011) and `Sivashankara Pillai’ (plaintiff in O.S.No.245/2011). Initially Sivashankaran Pillai, as plaintiff, filed O.S.No.245/2011 seeking the relief of permanent prohibitory injunction against trespass upon plaint item Nos.1 and 2 properties and also mandatory injunction to reinstate the gate on the entrance portion of plaint schedule item No.2. 4. According to Sivashankara Pillai, plaint schedule item 1 property and plaint item 2 pathway were purchased by Sivashankara Pillai as per sale deed Nos.66/1991 and 2880/1962 respectively. Plaint item No.2 property is the way purchased by Sivashankara Pillai available to plaint item No.1 property. The specific case of Sivashankara Pillai is that defendants' property lies on the south-eastern portion of plaint item No.1 property and the same is having road access through eastern side of plaint item No.3 pathway. Thus Sivashankara Pillai raised contention before the trial court that the defendants had no manner of right over plaint item Nos.1 and 2. 5. Krishnankutty and others resisted the Suit claiming right over RSA.Nos.72 & 73 of 2024 7 item No.2 way in O.S.No.245/2011. Apart from that, Krishnankutty and others filed O.S.No.330/2011 claiming easement by grant as well as easement by necessity over plaint item No.3 pathway in O.S.No.245/2011 (plaint item No.2 in O.S.No.245/2011) and sought the relief of declaration of the said right, as well as prohibitory and mandatory injunction. 6. The courts below tried the Suits separately. In O.S.No.245/2011, PWs 1 to 3 were examined and Exhibits A1 to A13 were marked on the side of plaintiffs. DW1 and DW2 were examined and Exhibits B1 ad B2 were marked on the side of the defendants. Exts.C1 to C2(a) were also marked. Finally the trial court decreed the Suit filed by Sivashankara Pillai and others, viz., O.S.No.245/2011 as under: _“1. The defendants and the men under them are restrained from trespassing into plaint schedule item No.1 and properties or demolishing the compound wall in the eastern boundary of plaint schedule item No.1 property or travelling through plaint schedule item No.2 property by a decree of permanent prohibitory injunction._ _2. The defendants are directed by a decree of mandatory injunction to reconstruct the demolished portion of the eastern compound wall of plaint schedule item No.1 property and to reinstate the gate at the entrance portion of plaint schedule item No.2 pathway within two months from the date of decree, falling which the plaintiff can execute the decree through the process of court at the costs of the_ RSA.Nos.72 & 73 of 2024 8 _defendants._ _3. The plaintiff is entitled to get costs from the defendants.”_ 7. O.S.No.330/2011 tried separately. PWs 1 to 4 were examined and Exts.A1 and A2 were marked on the side of the plaintiff and DW1 to DW3 were examined and Exts.B1 to B12(a) were marked on the side of the defendants also. Ext.C1 also was marked. Finally trial court dismissed the Suit. A.S.No.12/2022 and A.S.No.2/2021 filed by Krishnankutty and others challenging decrees and judgments in O.S.No.245/2011 and O.S.No.330/2011 respectively were dismissed by the appellate court after confirming the verdict of the trial court. 8. The learned counsel for the appellants submitted that in O.S.No.330/2011 even though easement by grant as well as easement by necessity were claimed, at the time of evidence, Sivashankara Pillai opted easement by grant. On perusal of the judgment in O.S.No.330/2011 it can be gathered that both claims were considered by the Munsiff togther and finally found that the claim of easement by necessity was withdrawn since it was found as per the report of the Commissioner as well as Exts.B11, B12 and B12(a) marked in O.S.No.330/2011 that alternative pathway as pointed out by the Sivashankaran Pillai is available to Krishanan Kutty and RSA.Nos.72 & 73 of 2024 9 others. 9. While adjudicating the contention raised by Krishnankutty and others in O.S.No.245/2021, in paragraph 9 of the judgment the learned Munsiff observed that Krishnan Kutty and others miserably failed to prove right of easement by grant or easement by necessity over plaint item No.2 pathway in O.S.No.245/2011. It is also observed by the learned Munsiff that when the trial in O.S.No.245/2011 was going on, Krishnankutty and others raised the contention that plaint item No.2 pathway in O.S.No.245/2011 is a public pathway. It is shocking to note that Krishnankutty and others raised 3 types of contentions while attempting to assert right over plaint item No.2 pathway in O.S.No.245/2011, which is item No.3 in O.S.No.330/2011. As per the judgment in O.S.No.330/2011, rendered by the trial court on 10.12.2020, the learned Munsiff negatived the right of easement by necessity as well as easement by grant. Appeal therefrom filed as A.S.No.02/2021 also was dismissed. After the verdict in O.S.No.330/2011 on 10.12.2020, the verdict in O.S.No.245/2011 was rendered on 29.01.2022. So, while considering O.S.No.245/2011, the trial court got the opportunity to consider the verdict in O.S.No.330/2011 and thereby the learned Munsiff found in O.S.No.245/2011 that, in RSA.Nos.72 & 73 of 2024 10 O.S.No.330/2011 Krishnankutty and others failed to establish right of easement by grant as well as easement by necessity. Shockingly after suffering defeat in O.S.No.330/2011, Krishnankutty and others raised contention in O.S.No.245/2011 that item No.2 pathway is a public way. Exts.B1 and B2 documents in O.S.No.245/2011 were given emphasis in this regard. The trial court found that in Ext.B1, the certified copy of resurvey plan, plaint item No.2 pathway is shown as pathway and as per Ext.B2, the certified copy of basic tax register, also the property comprised in Survey No.443/3 is stated as pathway. That by itself is totally insufficient to prove the nature of pathway as a public pathay. On scrutiny of the evidence discussed by the trial court and the appellate court it is well discernible that item No.2 pathway in O.S.No.245/2011, wherein Krishnankutty and others claimed right of easement by necessity in O.S.No.331/2011 describing the same as item No.3 pathway, is in existence. But the contention of Sivashankara Pillai is that the same is the property purchased by Sivashankara Pillai for the purpose of providing pathway to plaint item No.1 property. Going by the title deeds relied on by Sivashankara Pillai vide sale deed No.66/1991 and 2880/1962, absolute title is on Sivashankara Pillai. No doubt, in such contingency also, right RSA.Nos.72 & 73 of 2024 11 of easement would prevail. But Krishnankutty and others miserably failed to prove any right of easement also as mandated by law. Accordingly, O.S.No.330/2011 was dismissed. 10. In O.S.No.245/2011 the contention raised by Krishnankutty and others is that as per Ext.B2, plaint item No.2 is a pathway. But they failed to prove the same negating the absolute right claimed by Sivashankara Pillai over plaint item Nos.1 and 2 in O.S.No.245/2011. In view of the discussions it is emphatically clear that the trial court granted decree in favour of Sivashankara Pillai in O.S.No.245/2011 on appreciation of evidence rightly and the appellate court confirmed the same. Similarly O.S.No.330/2011 at the instance of Krishnankutty and others was dismissed since they failed to establish right of easement by necessity or easement by grant. Availability of another convenient way to Krishnankutty and others is proved by documents, as already mentioned and by the evidence of DW1 Krishnankutty and DW2 Appukuttan Achary examined in O.S.No.245/2011. Thus the verdicts rendered by the trial court impugned herein and its confirmation by the appellate court are perfectly in order and as such there is no substantial question of law arises to admit and maintain these appeals. RSA.Nos.72 & 73 of 2024 12 11. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 12. In these cases, the learned counsel for the appellants failed to raise any substantial question of law warranting admission of the Second Appeals. 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 defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 13. 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) RSA.Nos.72 & 73 of 2024 13 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 e such question. Proviso says that nothing in this sub-section shall b 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. 14. In the decision in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in 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.**_ 15. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**Government of Kerala v. Joseph**_ , it was held as under: RSA.Nos.72 & 73 of 2024 14 _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._ 16. 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.Nos.72 & 73 of 2024 15 XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 17. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting these appeals. In the result, these appeals are found to be meritless and the same are dismissed without being admitted. All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_