Sarojam v. Neelammal and Others

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ## _`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`_ ``` TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945 ``` ## _`RSA NO. 625 OF 2023`_ ``` AGAINST THE JUDGMENT DATED 30.08.2022 IN AS 2/2016 ON THE FILES OF THE SUBORDINATE JUDGES COURT, NEYYATTINKARA ARISING OUT OF DECREE AND JUDGMENT IN OS 1011/2011 OF FIRST ADDITIONAL MUNSIFF’S COURT, NEYYATTINKARA ``` ``` APPELLANT/APPELLANT IN AS No. 2/2016/DEFENDANT No.1 IN OS No.1011/2011: ``` ``` SAROJAM AGED 72 YEARS D/O. KAMALAKSHY, , RESIDING AT EDAVILAKATHU PUTHENVEEDU, PANACHAMOODU, TRIVANDRAM, PIN - 695505 BY ADVS. R.SUNIL KUMAR A.SALINI LAL ``` ## _`RESPONDENTS/RESPONDENTS & ADDITIONAL R6 TO R9 IN AS NO. 2/2016/PLAINTIFFS &`_ ``` DEFENDANTS 2 TO 4 IN OS NO. 1011/2011: ``` |_`1`_|_`NEELAMMAL (DIED),`_| |---|---| ||_`D/O KAMALAKSHY VATTAVILA KAILASAM, PARASALA DESOM, PARASSALA,`_| ||_`NEYYATTINKARA, THIRUVANANTHAPURAM ., PIN - 695121`_| |_`2`_|_`CHELLAPPAN SIVANKUTTY (DIED),`_| ||_`VATTAVILA KAILASAM, PARASALA DESOM, PARASSALA, NEYYATTINKARA,`_| ||_`THIRUVANANTHAPURAM, PIN - 695121`_| |_`3`_|_`THANKAPPAN GIRESH KUMAR (DIED),`_| ||_`EDAVILAKATHU PUTHEN VEEDU, PANACHAMOODU, NEYYATTINKARA,`_| ||_`THIRUVANANTHAPURAM, PIN - 695121`_| |_`4`_|_`ANITHA,`_| ||_`D/O. SAROJAM, AGED 46 RESIDING AT EDAVILAKATHU PUTHEN VEEDU,`_| ||_`PANACHAMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121`_| |_`5`_|_`RAJANI`_| ||_`D/O. SAROJAM, AGED 43 RESIDING AT EDAVILAKATHU PUTHEN VEEDU,`_| ||_`PANACHAMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121`_| |_`6`_|_`JAYASREE`_| ||_`W/O. GIRISH KUMAR, AGED 53 YEARS, EDAVILAKATHU PUTHEN VEEDU,`_| ||_`PANACHAMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121`_| |_`7`_|_`NANDANA G J`_| ||_`D/O. JAYASREE, AGED 28 YEARS, EDAVILAKATHU PUTHEN VEEDU,`_| ||_`PANACHAMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM ., PIN - 695121`_| |_`8`_|_`VANDANA G J`_| ||_`D/O. JAYASREE, AGED 26 YEARS, EDAVILAKATHU PUTHEN VEEDU,`_| ||_`PANACHAMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121`_| ``` R.S.A. No. 625 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** ``` 9SUDHARSANAN @ SAMBU S/O. SIVANKUTTY, AGED 51, CHANDANAKATTI, KAILASAM, PARASSALA, NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 625 of 2023 ``` ``` ..3.. ``` ## _**J U D G M E N T**_ **Dated this the 17[th] day of October, 2023** This Regular Second Appeal arises out of the judgment and decree in AS No. 2/2016 on the files of the Sub Court, Neyyattinkara dated 30.08.2022, arising out of decree and judgment in OS No. 1011/2011 on the files of the Additional Munsiff’s Court-I, Neyyattinkara. The appellant is the first defendant in the above suit and the appellant in AS No. 2/2016. Respondents are the plaintiffs and other defendants in this case. 2. Heard the learned counsel for the appellant on admission. Perused the verdicts under challenge. ## 3. Short facts:- The plaint schedule property obtained by the plaintiffs as per the sale certificate issued by the Sub Court, Neyyattinkara in O.S. No. 346/1993. Thereafter, on 06.11.2000, delivery of the property was ``` R.S.A. No. 625 of 2023 ``` ``` ..4.. ``` effected through process of court and thereby the possession of the property was handed over from the defendants to the plaintiff. Thereafter, the defendants started to create hazards to the title, possession and enjoyment of the plaint schedule property by the plaintiff and accordingly, the present suit for declaration of title and recovery of possession was necessitated. 4. The defendants jointly filed written statement and denied the title of the plaintiff over the said properties and also possession of the same. 5. The court below rendered evidence after raising necessary issues. During trial, the plaintiff got examined as PW1 and Exts. A1 to A6 documents were marked on the side of the plaintiff. DWs 1 to 3 examined and Exts. B1 to B4 marked on the side of the defendants. Ext.C1 report and C1(a) plan of the commissioner were also marked. On appreciation of evidence, the trial court granted decree in favour of the plaintiff as under:- ``` R.S.A. No. 625 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** - _“1. Plaintiffs title over plaint A schedule property is_ _hereby declared._ _2. Plaintiffs are entitled to recover their possession_ - _over plaint A schedule property by demolishing plaint B schedule shed._ _3. Defendants are restrained from trespassing into plaint A schedule property, from obstructing the peaceful enjoyment of the said property by the plaintiff and also from committing any waste therein._ _4. Plaintiffs are entitled to realize their costs from the defendants.”_ 6. On appeal before the Sub Court, Neyyattinkara, the same also was dismissed confirming the decree and judgment passed by the trial court. 7. At the time of admission hearing, the learned counsel for the petitioner miserably failed to point out any substantial question of law ``` R.S.A. No. 625 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** and he canvassed a mediation attempt for settling the dispute. 8. In the case at hand, it is well discernible that the plaintiffs are the persons, who obtained title to the plaint schedule property by court sale, in execution of a decree in O.S. 346/1993, which, in fact, had more authenticity than ordinary private sale of immovable properties. Thereafter, the plaintiffs got delivery of the property through process of court. But the defendants obstructed the peaceful possession and enjoyment of the property and made encroachment therein. Further, they also constructed a shed in the plaint schedule property, which is described as plaint B schedule. 9. Going through the documents relied on by the trial court, including Exts.A1 Sale Certificate, A2 delivery report, and A5 tax receipt, the title of the plaintiffs is well established. It has been established in evidence that pursuant to delivery of the property by the court, as per Ext.A2, after issuance of Ext.A1 sale certificate, in favour of the plaintiffs, defendants trespassed upon the property, which led to ``` R.S.A. No. 625 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** filing of the present suit for declaration of title and recovery of possession. No doubt, the claim raised by the defendants over the property denying the title of the plaintiffs found to be not at all tenable. In fact, the defendants have no manner of right over the property that plaintiffs obtained by court sale as evident from Exts. A1 to A3. Thus, it appears that the second appeal is devoid of any merits and no substantial question of law to be formulated to admit and maintain this appeal. 10. 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_ ``` R.S.A. No. 625 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** _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.”_ 11. 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) 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 ``` R.S.A. No. 625 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** 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. 12. In the decision in **Nazir Mohamed v. J. Kamala** and Others **2020 KHC 6507** : **AIR 2020 SC 4321** : reported in [ **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. 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_ ``` R.S.A. No. 625 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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_ ``` R.S.A. No. 625 of 2023 ``` ``` ..11.. ``` _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."_ _"If the question of law termed as a substantial question stands_ ``` R.S.A. No. 625 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _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."_ ``` R.S.A. No. 625 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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._ ## 13. 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** ]_ ``` R.S.A. No. 625 of 2023 ``` ``` ..14.. ``` _(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 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._ 14. 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 ``` R.S.A. No. 625 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** 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. In view of the matter, no substantial question of law arises to be formulated in view of the mandate of Section 100 r/w Order 42 Rule 1 ``` R.S.A. No. 625 of 2023 ``` **==> picture [37 x 7] intentionally omitted <==** of the Civil Procedure Code to admit and adjudicate this appeal. Accordingly, this regular second appeal stands dismissed, without being admitted. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` TRUE COPY ``` ``` P.A.TO JUDGE ```