Sethumadhavan v. Panchali

## _`IN THE HIGH COURT OF KERALA AT ERNAKULAM`_ ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945 ``` ## _`R.S.A NO. 655 OF 2021`_ ``` THE DECREE AND JUDGMENT DATED 27TH DAY OF FEBRUARY, 2021 IN A.S. NO. 158/2016 ON THE FILES OF THE IIIRD ADDITIONAL DISTRICT JUDGE, PALAKKAD ``` ## _`FROM`_ ``` THE DECREE AND JUDGMENT DATED 31ST DAY OF MARCH, 2016 IN O.S. NO. 499/2004 ON THE FILES OF THE PRINCIPAL MUNSIFF’S COURT, PALAKKAD ``` ## _`APPELLANT/APPELLANT/DEFENDANT:`_ ``` SETHUMADHAVAN AGED 71 YEARS S/O. CHAMAYI, ORAVANKUZHI HOUSE, MUNDUR, PALAKKAD DISTRICT. BY ADVS. RAJESH SIVARAMANKUTTY K.V.ANTONY ARUL MURALIDHARAN ``` ## _`RESPONDENT/RESPONDENT/PLAINTIFF:`_ ``` PANCHALI AGED 55 YEARS W/O. A.VELU, ADAKKODE VEEDU, VELIKKAD, MUNDUR, PALAKKAD DISTRICT, PIN-678592. BY ADVS. JACOB SEBASTIAN K.V.WINSTON ANU JACOB ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 655 of 2021 ``` **==> picture [31 x 7] intentionally omitted <==** ## _`J U D G M E N T`_ ## **Dated this the 15[th] day of September, 2023** This Regular Second Appeal has been filed under Section 100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short) and the appellant is the _defendant_ in O.S. No. 499/2004 on the files of the Principal Munsiff’s Court, Palakkad. The appellant is aggrieved by the decree and judgment dated 31[st] March 2016 in O.S. No. 499/2004 as well as decree and judgment in A.S. No. 158/2016 dated 27[th] February 2021 on the files of the Additional District Court-III, Palakkad. The respondent herein is the _plaintiff_ in the above suit. 2. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondent. 3. I shall refer the parties in this Regular Second Appeal as ‘ _plaintiff_ ’ and ‘ _defendant_ ’ for convenience. ``` R.S.A. No. 655 of 2021 ``` **==> picture [31 x 7] intentionally omitted <==** 4. The case put up by the plaintiff before the trial court was that she obtained title to an extent of 65 cents of property by virtue of a settlement deed No. 399/1990 SRO, Parali executed in her favour by her husband. It was also contended that the husband obtained the property as per Janmam assignment deed No. 265/1979 of SRO, Parali. The grievance advanced by the plaintiff before the trial court was that there was no definite boundary separating the defendant's property from the plaintiff's property on the northern side of the plaint schedule property. Therefore, the plaintiff sought the relief of fixation of the northern boundary of the same. 5. The defendant filed a written statement and resisted the suit contending that the plaintiff had title only to an extent of 56 cents, as Item No. 2 as per B Schedule in the partition deed No. 1468/1972 of SRO, Parali, and the property was described in ‘ _Kole’_ measurement of 26 x 26 = 56 cents. Therefore, the plaintiff could not succeed in fixing the Northern boundary of the ``` R.S.A. No. 655 of 2021 ``` ``` ..4.. ``` plaintiff’s property treating the entire property as 65 cents. 6. In a suit instituted in the year 2004, the court below recorded the evidence. PW1 examined and Exts. A1 to A5 were marked on the side of the plaintiff. DW1 was examined and Exts.B1 and B2 were marked on the side of the defendant. CWs 1 and 2 were examined and Exts. C1 to C3 series were marked. Finally, the trial court found that even though as per Ext.B2 partition deed No. 1468/1972, 26 x 26= 56 cents is the property as per the recitals in Ext. A2 sale deed, regarding the derivation of the property there was an oral partition between the parties and finally the total extent of property obtained by Kunji is 65 cents. The crucial observations made by the trial court regarding the extent of land which could be seen from paragraphs No. 31 to 36, the same as under:- “1962 -ൽ 606 നമ്പറായി രെജിസടരാക്കിച് വാങ്ങിയ തീറാധാര പ്രകാരം മേൽ പറഞ്ഞ ലക്ഷ്മി എന്നവർക്കും എനിക്കും കൂടി അവകാശമായിരുന്നതും ഞങ്ങൾ തമ്മിൽ ഉണ്ടായ വാക്കാൽ ഭാഗപ്രകാരം താഴെ ചേ ർത്ത വഹകൾ എന്റെ ഓഹരിക ``` R.S.A. No. 655 of 2021 ``` **==> picture [31 x 7] intentionally omitted <==** വച്ചതും, എനിക സ്വകാര്യവും, ജമതിരിച്ചും നികുതി അടച്ചും ആദായങ്ങൾ അനുഭവിച്ചും നിരാക്ഷേപമായി കൈ വശം വെ ച വരുന്നതുമാകുന്നു" _That shows the anterior title deed of Ext.A2 sale deed is mainly Ext.A3 606/1962 and the subsequent partitions._ _32. There are actually two partitions. One is the oral between and Lakshmi what was partition Kunji partitioned was the property purchased by them as per 606/1962. The other partition is the partition of 1972 as per document NO. 1468/1972 in the family of Chamayi which stands marked as Ext.B2._ _33. In fact during the cross examination of DW1a question was put to him whether he understood which was the plaint schedule properties. He answered that it is the property given to Kunji by his father Chamayi as per the partition deed of 1972. But when he was asked whether in 1970 other properties were partitioned then the answer of_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [31 x 7] intentionally omitted <==** _DW1 was that his father and grand father might have done so. He admitted that he is a party in Ext.B2 partition_ _deed. When he was questioned what if it is seen in Ext.B2 that some other properties were partitioned in 1970, he answered that if it is seen so it was not correct._ _34. That means DW1 is not a reliable witness. He is testifying against the recital in a partition deed in which he himself is a party. In fact in the second page of the partition deed of 1972 it is given that :_ _"there was already a partition of some properties in the year 1970.”_ _The said recital shows that there was some kind of partition earlier._ _35. The reason for such partition is also very much evident. It is admitted that the property purchased as per Ext.A3 as per 606/1962 is jenm properties and it is a jenm sale deed. But the property subject to partition as per_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [31 x 7] intentionally omitted <==** _Ext.B2 is verumpattom right properties. The properties in Ext.A3, 606/1962 is the property purchased by Lakshmi and Kunji jointly. Therefore there was some rationale in a partition between them._ _36. Therefore, when Kunji is transferring the properties in her ownership and possession by Ext.A2 to the husband of the plaintiff in 1979 she transferred two sets of properties, one obtained by her in the oral partition following the right derived from the document No. A3 606/1962, and the second one is item No.2 in the B schedule in the partition deed Ext.B2. Thus the total extent is not just 56 cents but 65 cents as given in the schedule of Ext.A2 of 1979. Therefore, I hold that there is no discrepancy and the husband of the plaintiff is fully entitled to transfer 65 cents to his wife Panjali, the plaintiff, as per the sale deed No.309/90.”_ 7. When the finding of the trial court was challenged before ``` R.S.A. No. 655 of 2021 ``` ``` ..8.. ``` the appellate court, the appellate court also meticulously analysed the evidence and found in paragraph No. 13 as under:- _“13. Now the question to be considered is whether with the available materials on record the plaintiff is able to point out the boundaries of the property held by her and the Court can fix the boundary accordingly. In order to measure the property and submit sketch and report, 3 commissioners are seen to have deputed by the trial Court at different stages of the suit. Ext.C1 is the report and sketch submitted by Advocate A. Ajitha on the basis of the inspection conducted by her on 05-06-2007. As per her report the plaint schedule property is situated in Re. Sy. 222/5 and 222/10 and extent of the property in the possession of the plaintiff is 57.75 cents. She reported that 1.75 cents were set apart for a road through the eastern and southern boundaries and 5.5 cents in Re. Sy. 222/10 is in dispute. She has marked the property in the_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [31 x 7] intentionally omitted <==** _possession of plaintiff in orange shade and the property in dispute in green shade. She reported that the property shown in green shade is in the possession of the defendant. The Commissioner who submitted Ext.C(1) series was examined as CW1. During cross examination she admitted that in the plaint the old survey numbers are shown, whereas, Ext.C1(a) was prepared as per resurvey. Though she claimed that the plan was prepared on the basis of old survey and corresponding resurvey numbers are shown, she submitted that a plan as per old survey field is not produced before the Court. She admitted that the was not measured as the old property per measurements shown in the title deed.”_ 8. On perusal of the judgments under challenge, it could be gathered that as per Ext.C3(a) plan, the yellow shaded portion coming to 65 cents was located as the property of the plaintiff and accordingly, the trial court as well as the appellate court, ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** allowed the plaintiff to fix the northern boundary based on Ext.C3(a) Survey sketch. On perusal of Ext.C3(a) plan along with documents of title including Exts. A1 and A2, it could be gathered that as per Ext.A2 (copies of the same were furnished by the parties), the husband of the plaintiff obtained 65 cents of property, and the same was transferred as per Ext.A1 in the name of the plaintiff. As per Ext.A3 partition deed, the property seen transferred is 26 x 26 ‘ _kole’_ and the same is 55 cents. But, the derivation of title shown in Ext.A3 is that property having an extent of 65 cents obtained by Kunji on the basis of Ext.A3 partition deed as well as an oral partition in between the parties. In the trial court judgment, DW1, the defendant herein, stated that in Ext.B2, there was a recital regarding an oral partition in the year 1970, though the said recital was not correct. 9. The appellate court observed in paragraph No. 16 that _“As stated above, the plaintiff is claiming right over the property on the basis of Ext.A2 and in that document the extent is shown_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** _as 65 cents and the properties was lying in 2 talks. But the anterior title deeds show that the property was lying in a single tak and the measurement was shown as 26x26 SFK. Now there is no dispute regarding the eastern, western and southern boundaries of the plaint schedule property. The question now to be considered is only regarding the boundary on its northern side. In Ext.A2 the northern boundary is shown as the property of Chamayi who is none other than the predecessor in interest of the plaintiff and defendant. In Ext.B2 partition deed the northern boundary is shown as Thekkinkkad parambu. The plaint schedule property is also part of Thekkinkkad parambu situated in Re.Sy.115/4. The description in Ext.B2 shows that the total extent of Re.Sy.115/4 is 81 cents and out of that 56 cents were allotted to Kunji. A perusal of Ext. B2 shows that none of the other executants were allotted with property in Re.Sy. 115/4. When the defendant was examined as DW1 he produced Ext.B1 sale deed executed by Chamayi in his favour. He claimed that item No.3 in_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** _Ext.B1 is the property in his possession. That shows that the Survey number is 115/3 and the name of property is,_ ചീക്കല്ലു പറമ _and the total extent is 32_ പപകുതിതെ ക്കുഭാഗംപറമ്പു _cents. The southern boundary is shown as Chukkan kudiyiruppu and the extent is 30 cents. Though the western boundary is shown as canal, none of the other boundaries have any resemblance with boundaries in Ext.B2 or the title deeds claimed by the plaintiff. So it may not be possible to find that the property now in the possession of the defendant on the northern side of plaint schedule property which is shown in pink shade in Ext.C3(a) in Re. Sy.222/11 and 12 is covered by Ext.B1. A perusal of Ext.B2 shows that on the southern boundary of none of the items covered by that document B schedule item No.2 or Thekkinkkadu thodika is shown as a boundary. To what extent Thekkinkkad thodika extents is not clear from Ext.B2. But the northern boundary is Thekkinkkad parambu. The Commissioner in Ext.C3(a) sketch has identified the yellow shaded portion as_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** _the plaint schedule property. He has found that the total extent now in the possession of the plaintiff comes to 26.83 Ares, equivalent to 66.29 cents. It is true that when the measurements shown in Ext. B2 other anterior title deeds are taken into account, the extent will be only 56 cents. It is settled law that when there is difference between survey number, extent and boundary, boundary will prevail. So from the available materials it can be seen that the survey number and extent of the property do not tally and one has to rely on the boundary stated in the documents.”_ 10. It appears that both courts concurrently found that the property of the plaintiff is 65 cents and she obtained the same in view of Ext.A1 in continuation of Ext.A2 and also as per Ext.A3 and as per an oral partition of the year 1970. The oral partition in between the parties was specifically mentioned in Ext.A3, a document executed in the year 1962 and DW1 also conceded the same, though his case is that the said narration is incorrect. ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** 11. 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.”_ 12. 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 ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** 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. 13. In the decision in **Nazir Mohamed v. J. Kamala** and **2020 KHC 6507** : **AIR 2020 SC 4321** : **2020** Others reported in [ ## **(10) SCALE 168** ], the Apex Court held that: _The condition precedent for entertaining and deciding a second_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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_ ``` R.S.A. No. 655 of 2021 ``` ``` ..17.. ``` _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 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_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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_ ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** _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 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._ 14. 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_ ``` R.S.A. No. 655 of 2021 ``` ``` ..20.. ``` _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 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._ ## 15. The legal position is no more res-integra on the point that ``` R.S.A. No. 655 of 2021 ``` **==> picture [37 x 7] intentionally omitted <==** 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 ``` R.S.A. No. 655 of 2021 ``` ``` ..22.. ``` 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 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 ```