Sarada and Others v. K. Ramankutty 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. 697 OF 2020 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.127/2016 OF DISTRICT ``` ## **`COURT, PALAKKAD`** ``` AGAINST THE JUDGMENT AND DECREE IN O.S.NO.812/2014 OF PRINCIPAL MUNSIFF COURT, PALAKKAD ``` ``` APPELLANTS/1ST, 3RD AND 4TH APPELLANTS/1ST, 3RD AND 4TH DEFENDANTS: ``` ``` 1SARADA AGED 60 YEARS W/O.LATE SHANMUGHAN, KARADIMALA KUNDIL, PUTHAN VEEDU, KERALASSERY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT, KERALA STATE-678 641 2RAVEENDRAN AGED 40 YEARS S/O.LATE SHANMUGHAN, KARADIMALA KUNDIL, PUTHAN VEEDU, KERALASSERY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT, KERALA STATE -678 641 3KRISHNAKUMAR AGED 37 YEARS S/O.LATE SHANMUGHAN, KARADIMALA KUNDIL, PUTHAN VEEDU, KERALASSERY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT, KERALA STATE -678 641 BY ADVS O.P.NANDAKUMAR T.THANKAM ``` ## **`RESPONDENTS/RESPONDENTS 1, 2 & 2ND APPELLANT/PLAINTIFFS & 2ND`** ## **`DEFENDANT:`** ``` 1K.RAMANKUTTY AGED 64 YEARS S/O.LATE KARUPPAN CHETTIYAR, DOOR NO.6/339, KARADIMALA KUNDIL, PUTHAN VEEDU, KERALASSERY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT, KERALA STATE -678 641 ``` ``` RSA NO. 697 OF 2020 2 ``` ``` 2SAVITHRI @SUMATHI AGED 54 YEARS W/O.K.RAMANKUTTY, DOOR NO.6/339, KARADIMALA KUNDIL, PUTHAN VEEDU, KERALASSERY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT, KERALA STATE -678 641 ``` ``` 3MANIKANTAN AGED 42 YEARS S/O.LATE SHANMUGHAN, KARADIMALA KUNDIL, PUTHAN VEEDU, KERALASSERY AMSOM AND DESOM, PALAKKAD TALUK AND DISTRICT, KERALA STATE -678 641 ``` ``` R1 & R2 BY ADV SRI.U.BALAGANGADHARAN ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 697 OF 2020 3 ``` ## **JUDGMENT** Dated this the 14[th] day of February, 2024 This Regular Second Appeal has been filed by the appellants against the decree and judgment in A.S.No.127/2016 on the files of the District Court, Palakkad, arose out of the decree and judgment in O.S.No.812/2014 on the files of the Principal Munsiff Court, Palakkad. 2. Appellants are defendants 1, 3 and 4 in the above suit. Respondents are the original plaintiffs as well as the 2[nd] defendant. 3. Heard the learned counsel for the appellants as well as the learned counsel appearing for the 1[st] respondent/1[st] plaintiff. 4. I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendants’ for convenience. 5. Raising easement of necessity over B schedule pathway, having width of 3 metre as the access to A schedule property belonged to the plaintiffs, plaintiffs filed suit for injunction, when the way was attempted to be obstructed by ``` RSA NO. 697 OF 2020 4 ``` the defendants. 6. Defendants filed written statement and admitted the existence of the way, but specifically denied its width as 3 metre. According to the defendants, the width of the way is only 3 ft. 7. The trial court raised necessary issues and recorded evidence. PW1 and PW2 were examined and Exts.A1 to A3, Exts.C1 and C1(a) were marked on the side of the plaintiffs. DW1 was examined on the side of the defendants. CW1 was examined as court witness. Finally, the trial court decreed the suit and granted prohibitory injunction as well as mandatory injunction. 8. Though appeal filed, appeal also was dismissed, confirming the findings of the trial court. 9. The learned counsel for the defendants argued that, the width of the way is only 3 ft. and in none of the documents, the width of the way stated, even though in Ext.A1 partition deed of the year 1985, Ext.A2 sale deed and in Ext.A3 partition deed, northern boundary of B schedule shown as 'idavazhi'. Thus, it appears that, either in Exts.A1 to A3, there is no ``` RSA NO. 697 OF 2020 5 ``` mention regarding the width of the way, though there is recital as to existence of ‘idavazhi’. According to the plaintiffs, the width of the so called ‘idavazhi’, generated as easement by necessity, is 3 metre and the way has been in usage for the last 50 years. In this regard, PW1 given evidence. PW2, who is none other than the brother of the 1[st] plaintiff and the brother of Shanmughan, the husband of the 1[st] defendant and the father of defendants 2 to 4, also supported the existence of the way, having width of 3 metre. 10. As per Ext.C1 series report and rough sketch, the Commissioner located 3 metre width way and also blockage created by the defendants by erecting fence. 11. The learned counsel for the defendants submitted that the said Commission report was without notice to the defendants. However, it is noticed that, later, the Commissioner got examined and the defendants’ counsel zealously cross examined CW1. Going by the evidence of CW1 as well as Ext.C1 series, the width of the pathway in existence is 3 metre, though there was obstruction created by the defendants. Thus, ignoring the contention raised by the defendants in the written ## **`RSA NO. 697 OF 2020 6`** statement and the evidence given by DW1 in support of this contention, the trial court decreed the suit and the appellate court confirmed the same. Thus, there is no infirmity in the concurrent verdicts, which would require interference by this Court by admitting this appeal after formulating substantial question of law. 12. In this matter, in fact, the learned counsel for the appellants 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.”_ 13. Section 100 of the C.P.C. provides that, (1) Save as ``` RSA NO. 697 OF 2020 7 ``` 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. 14. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 :** ``` RSA NO. 697 OF 2020 8 ``` ## **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]** ._ 15. 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. 697 OF 2020 9 ``` 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 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 ``` RSA NO. 697 OF 2020 10 ``` 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 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