Shamsudheen v. Hassankutty and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** ## **RSA NO. 308 OF 2021** **[AGAINST THE JUDGMENT & DECREE DTD.21.1.2021 IN AS 13/2015 OF SUB COURT, OTTAPPALAM, PALAKKAD & AGAINST THE JUDGMENT & DECREE DTD.25.11.2014 IN OS 142/2012 OF MUNSIFF-MAGISTRATE COURT, PATTAMBI]** ## **APPELLANT/APPELLANT/PLAINTIFF:** SHAMSUDHEEN AGED 60 YEARS S/O. LATE ELATTUPARAMBIL ABOOBACKER, NETHIRIMANGALAM AMSOM AND DESOM, PATTAMBI P.O, PATTAMBI TALUK, PALAKKAD DISTRICT BY ADVS. SANTHEEP ANKARATH SRI.J.RAMKUMAR ## **RESPONDENTS/ RESPONDENTS 2 TO 28,30 TO 37/DEFENDANTS 2 TO** **28, LEGAL HEIRS OF D29 & D1:** 1 HASSANKUTTY, AGED 50 YEARS, S/O. LATE THITHUMMA, AMBALAVANPOIKAYIL, P.V HOUSE, IRINGALLUR AMSOM DESOM, P.O IRINGALLUR, VIA VENGARA, MALAPPURAM DISTRICT, PIN 676 304 2 KHADEEJA, AGED 53 YEARS, D/O. LATE THITHUMMA, W/O. ABDUL KHADAR, AMBALAVANPOIKAYIL, TIRUR TALUK, IRINGALLUR AMSOM DESOM, MALAPPURAM DISTRICT, PIN 676 304 NOW RESIDING AT PLATHOTTATHIL HOUSE, PALAPPILLY, VARANTHARAPPILLY, THRISSUR, PIN 680 304 3 ALI, AGED 51 YEARS, S/O. LATE THITHUMMA, AMBALAVANPOIKAYIL, P.V HOUSE, IRINGALLUR AMSOM DESOM, P.O IRINGALLUR, VIA VENGARA, MALAPPURAM DISTRICT, PIN 676 304 R.S.A.No. 308 OF 2021 ..2.. 4 SAIDALAVI, AGED 49 YEARS, S/O. LATE THITHUMMA, AMBALAVANPOIKAYIL, P.V HOUSE, IRINGALLUR AMSOM DESOM, P.O IRINGALLUR, VIA VENGARA, MALAPPURAM DISTRICT, PIN 676 304 5 RUKKIYA, AGED 44 YEARS D/O. LATE THITHUMMA, W/O.MOIDEENKUTTY VAIDHYAN, AMBALAVANPOIKAYIL, TIRUR TALUK, IRINGALLUR AMSOM DESOM, MALAPPURAM DISTRICT, PIN 676 304 NOW RESIDING AT VAIDHYAN HOUSE, HOUSE NO. 579, POND KARIKKALAMKADAVU, VARANTHARAPPILLY, THRISSUR, PIN 680 304 6 NABEESA AGED 72 YEARS W/O. LATE ALLANUR MUHAMMEDKUTTY, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT C/O. SAIFUNNEESA KHALID, KALATHIL HOUSE, KONDOORKARA P.O, VIA KALLADIPATTA, PALAKKAD DISTRICT, PIN 679 313 7 KADEEJATHUL KHUBRA, AGED 62 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY, W/O.HAMSA, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT NURIKKALAYIL HOUSE, CIVIL STATION ROAD, P.O PATTAMBI 679 303, PALAKKAD DISTRICT. 8 BHADARUDHEEN, AGED 61 YEARS S/O. ALLANUR MUHAMMEDKUTTY, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT ALLANOOR HOUSE, THEKKUM MURI, P.O SANKARA MANGALAM, VIA PATTAMBI, PALAKKAD 679 303. 9 LAILA, AGED 58 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY, W/O. IBRAHIM, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT KALLUVETTI HOUSE, P.O PATTIKKAD, MALAPPURAM DISTRICT, PIN 679 325 ## R.S.A.No. 308 OF 2021 ..3.. 10 MUHAMMADALI, AGED 55 YEARS S/O. ALLANUR MUHAMMEDKUTTY, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT ALLANOOR HOUSE, THEKKUM MURI, SANKARA MANGALAM P.O, VIA PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 11 SUHARABI(WRONGLY TYPED AS 'SURABI') AGED 52 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY, W/O. MOHAMMEDKUTTY, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT MELANGADI HOUSE, P.O MELEPATTAMBI, PALAKKAD DISTRICT, PIN 679 306 12 MUHAMMED ASHARAF, AGED 50 YEARS S/O. LATE ALLANUR MUHAMMEDKUTTY, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 13 SAIFUNNEESA, AGED 48 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY, W/O. KHALID, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT KALATHIL HOUSE, P.O KONDOORKARA, VIA KALLADIPATTA, PALAKKAD 679 313 14 KHAMARUNNEESA, AGED 46 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY, W/O. ABDUL RAHMAN,NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT C/O. SAIFUNNEESA KHALID, KALATHIL HOUSE, P.O KONDOORKARA, VIA KALLIDIPATTA, PALAKKAD 679 313 ## R.S.A.No. 308 OF 2021 ..4.. - 15 SAJITHA AGED 44 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY,W/O.HAIDER, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT MUSLIM VEETTIL HOUSE, KARAKKAD.P.O., VADANAMKURUSSI, PATTAMBI, PALAKKAD DISTRICT, PIN 679 121 - 16 ABITHA AGED 42 YEARS D/O. LATE ALLANUR MUHAMMEDKUTTY,W/O. RAZAK, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT MARIYATHODI HOUSE, P.O KURUVATTUR, VIA VALLAPPUZHA, PALAKKAD DISTRICT, PIN 679 336 - 17 ASYA(WRONGLY SHOWN AS AYSHA) IN A.S. JUDGMENT AGED 75 YEARS W/O. ALLANUR ABOOBACKER, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 - 18 MUHAMMADALI AGED 38 YEARS S/O. LATE ALLANUR ABOOBACKER, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 - 19 KHADEEJATHI KHUBRA, AGED 56 YEARS, D/O. LATE ALLANUR ABOOBACKER, W/O.ABDUL MALIK,NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT MALIYAKKAL HOUSE, NEAR I.P.C SALEM HALL, SHORNUR-1, PALAKKAD DISTRICT, PIN 679 121 - 20 USMAN, AGED 54 YEARS S/O. LATE ALLANUR ABOOBACKER, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 - 21 FATHIMATH SUHARA, AGED 52 YEARS D/O. LATE ALLANUR ABOOBACKER, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 R.S.A.No. 308 OF 2021 ..5.. 22 KHAMARUNNEESSA, AGED 50 YEARS D/O. LATE ALLANUR ABOOBACKER, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 23 SAJITHA, AGED 48 YEARS D/O. LATE ALLANUR ABOOBAKER, W/O. UMMER, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT MANNEKKARA HOUSE, NELLIKKAD, P.O KALLEKKAD, PALAKKAD 678 001 24 RAHIANATH (WRONGLY TYPED AS 'RAIHANATH' IN O.S.JUDGMENT) AGED 46 YEARS D/O. LATE ALLANUR ABOOBACKER, W/O. ABDUL NAZER, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT KARALANKUNNATH HOUSE, RAHNA MANZIL, BANGLAPARAMBU, P.O PALLIPPURAM, PALAKKAD DISTRICT, PIN 679 305 25 ANWAR, AGED 44 YEARS S/O. LATE ALLANUR ABOOBACKER, ALLANOOR HOUSE, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 26 RAJEENA, AGED 42 YEARS D/O. LATE ALLANUR ABOOBACKER, W/O. K.H UMMER(MUTHUPPA) NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT KANDANTHODI HOUSE, RISWANA MANZIL, M.A.K COLONY, MEPARAMBU, P.O KALLEKKAD, PALAKKAD DISTRICT, PIN 679 305 27 FEBEENA RAHMATH, AGED 40 YEARS D/O. LATE ALLANUR ABOOBACKER, NETHIRIMANGALAM AMSOM AND DESOM, LIBERTY STREET, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 R.S.A.No. 308 OF 2021 ..6.. 28 NASIRA K.T, AGED 32 YEARS W/O. MUJEEB, D/O. LATE FATHIMABEE, ALLANUR HOUSE, KAIRALI STREET, NETHIRIMANGALAM AMSOM AND DESOM, PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT PARAYIL HOUSE, P.O PARUTHUR, VIA, PALLIPPURAM, PALAKKAD DISTRICT, PIN 679 305 29 AMEENA NIHMATH K.T, AGED 29 YEARS W/O. FAKKRUDHEEN, D/O. LATE FATHIMABEE, ALLANUR HOUSE, KAIRALI STREET, NETHIRIMANGALAM AMSOM AND DESOM, P.O PATTAMBI, PALAKKAD DISTRICT, PIN 679 303 NOW AT CHEKIDAM KUZHIYIL HOUSE, AMBALAPADI, VENDALLOOR P.O, IRIMPLIYAM, VIA VALANCHERI, MALAPPURAM DISTRICT, PIN 679 572. 30 ABDUL KHAYOOM A, AGED 57 YEARS S/O. LATE UMMER MASTER, ALLANOOR HOUSE, (HABEEB MANZIL) P.O NHANGATTIRI, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN 679 303 31 KADEEJATHUL KHUBRA, AGED 54 YEARS W/O. UMMER, D/O. LATE UMMER MASTER, AFFEEFA MANZIL, PAZHUMKARA, P.O PALLIPURAM, PALAKKAD, PIN 679 305 32 AMINAKUTTY AGED 51 YEARS D/O. LATE UMMER MASTER, W/O. USMAN K, KADANTHODI HOUSE, P.O KANAYAM 679 122, VIA SHORNUR, PALAKKAD DISTRICT. 33 HASEENA AGED 39 YEARS D/O. LATE UMMER MASTER AND W/O. UBAID, ALLANOOR HOUSE (JAVAD MANZIL) BEHIND SEVANA HOSPITAL P.O KALLADIPATTA, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN 679 313 NOW AT COLONY, P.O PUTHIYANGAM, ALATHOOR, PALAKKAD DISTRICT, PIN 678 541 R.S.A.No. 308 OF 2021 ..7.. 34 MOHAMMED SAMEER, AGED 39 YEARS S/O. LATE UMMER MASTER, ALLANOOR HOUSE, JAVAD MANZIL, BEHIND SEVANA HOSPITAL, P.O KALLADIPATTA, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN 679 313 35 JAVAD, AGED 30 YEARS S/O. LATE UMMER MASTER, ALLANOOR HOUSE, JAVAD MANZIL, BEHIND SEVANA HOSPITAL, P.O KALLADIPATTA, PATTAMBI TALUK, PALAKKAD DISTRICT, PIN 679 313 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON 13.09.2021 DELIVERED THE FOLLOWING: R.S.A.No. 308 OF 2021 **==> picture [22 x 8] intentionally omitted <==** **==> picture [329 x 15] intentionally omitted <==** The plaintiff in a suit for cancellation of a decree in O.S.No.49/1997 of the Munsiff Court, Pattambi (hereinafter referred to as 'the trial court') and for other consequential reliefs is the appellant herein. 2. In the suit, the plaintiff sought for cancellation of a decree for partition contending that one of the items in the partition decree was under his sole ownership and possession as per Exts.A2 to A4 assignment deeds executed by the legal heirs of late Fathima Beevi. Certain properties owned by Kuhnjayamu Master were gifted by him in favour of his daughter Fathima Beevi as per Ext.A1 assignment deed. Upon the death of Fathima Beevi, Exts.A2 to A4 assignment deeds were executed by her legal heirs in favour of the plaintiff. 3. The plaintiff contended that fraud was played on the court by the plaintiff in the earlier suit and hence, sought for cancellation of the decree. The trial court held R.S.A.No. 308 OF 2021 ..9.. that the suit for cancellation is not maintainable at the instance of a person, who is not a party to the instrument or a person, who is claiming under the executor of the document. In other words, the plaintiff cannot seek for cancellation of the document in which he is not a party to the suit and his remedy is to seek for declaration that he is not affected by the document. 4. Challenging the judgment and decree, the plaintiff carried the matter in appeal. The Sub Court, Ottappalam (hereinafter referred to as 'the first appellate court') dismissed the appeal confirming the judgment and decree of the trial court. For the sake of brevity, the parties shall be hereinafter referred to as referred in the original suit unless otherwise stated. 5. Heard Sri.J.Ramkumar, the learned counsel for the appellant. 6. The learned counsel for the appellant submits that the two courts below erred in dismissing the R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** suit giving a sole reason that the plaintiff is not a party to the suit, the decree of which is sought to be cancelled. The learned counsel for the appellant further submits that both the plaintiff and the defendants are claiming under the same title. According to the learned counsel, the two courts below erred in dismissing the suit giving a sole reason that the plaintiff is not a party to the suit, the decree of which is sought to be cancelled. 7. The plaintiff produced Exts.A2 to A4 assignment deeds to prove his right over the plaint schedule property. The plaint schedule property originally belonged to the plaintiff's grandfather Kuhnjayamu Master. He had executed Ext.A1 gift deed in favour of the plaintiff's mother. On her death, her children obtained right over the plaint schedule property. These rights are subsequently alleged to be sold to him as per Exts.A2 to A4. 8. It is the specific contention of the plaintiff R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** that the defendants exercised fraud on the court by incorporating the plaint schedule property behind his back. However, the term 'fraud' has not been explained by the plaintiff in the plaint. In a case in which the party pleading relies on any mis-representation, fraud, breach of trust, wilful default or undue influence, the particulars with dates and items, if any, shall be stated in the pleading in accordance with Order VI Rule 4 of Civil Procedure Code (hereinafter referred to as 'the C.P.C.'). Ext.B1 plaint in O.S.No.49/1997 of the Munsiff's Court, Pattambi would show that the allegations are made in a vague and sweeping manner. 9. It is the definite case of the plaintiff that preliminary decree was passed in O.S.No.49/1997 including the plaint schedule property in which the plaintiff is having absolute title and possession. Admittedly, the plaintiff was not a party to the suit. It was contended that the wife of the plaintiff and his brother-in- R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** laws were parties to the suit. 10. The plaintiff, who suffers injury by reason of a document or decree, can file a suit for cancellation of such a document or decree under Section 31 of the Specific Relief Act. Firstly, the written instrument is void or voidable against the plaintiff. Secondly, the plaintiff must have reasonable apprehension that such instrument, if left outstanding, may cause him serious injury. In so far as Section 34 of the Specific Relief Act is concerned, the plaintiff can seek a declaration that he is so entitled to such a relief. Thus, the plaintiff, who claims the right to property, can institute a declaration suit only when the defendant denies or interested to deny the title of the plaintiff. ## 11. In **Kotrabassappaya** v. **Chenvirappaya** **and another** [(1898) ILR 23 Bom. 375], dealing with Section 39 of the Specific Relief Act, 1877 (which is now Section 31 of the 1963 Act), a Division Bench of the R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** Bombay High Court interpreted the provision as enabling only the person, who has parted with the property under an instrument is entitled to maintain an action for cancellation of the deed. In **Iyyappa** v. **Ramalakshmamma** [(1890) ILR 13 Mad 549], a Division Bench of the Madras High Court laid down that a suit for cancellation of an instrument is maintainable only by the person, who executed the document. 12. A Full Bench of the Madras High Court in **Muppudathi Pillai** v. **Krishnaswami Pillai and others** [AIR 1960 Madras 1 (FB)] considered the scope of Sections 39 and 41 of the Specific Relief Act,1877 (which are now Sections 31 and 33 of the 1963 Act) and held that the relief under Section 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title. The Full Bench of the Madras High Court noticed that when the instrument/document is not R.S.A.No. 308 OF 2021 ..14.. executed by the plaintiff, the same does not create a cloud upon the title of the true owner nor does it create apprehension that it may be a source of danger. Accordingly, a suit for cancellation of instrument by a person, who does not execute the document, will not lie presumably for the reason that when the document itself is not executed by the plaintiff, there is no necessity to have the document cancelled by a decree of Court, for it has no effect on the title of the plaintiff. 13. In **Debi Prasad** v. **Maika** [AIR 1972 Allahabad 376], a learned Single Judge of the Allahabad High Court placing reliance on the Full Bench decision of the Madras High Court in **Muppudathi Pillai** (supra) held that cancellation of deed can be sought in a court only by a person, who has executed the document and who perceives that such document is void or voidable. So far as the plaintiff, who is not a party to the document, is concerned, it cannot be successfully maintained that a R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** reasonable apprehension can be entertained by the plaintiff that if the document is left outstanding, it may cast a cloud upon his title or cause him serious injury because the cloud upon his title will not be removed merely by a decree for cancellation of the instrument. 14. In **Kamalakshi Amma** v. **Sangeetha** [2012(3) KLT 264],a learned Single Bench of this Court considered the Full Bench decision of the Madras High Court in **Muppudathi Pillai** (supra) and held that a suit for cancellation of instrument by a person, who did not execute the document, would not lie. It was further held that the remedy of such person, if he thinks that the document may create a cloud on his own title is to seek a declaration of his own title or that the document does not affect his title. Thus, the difference between the two situations is glaring. In one case cancellation of deed can be sought in a court only by a person who executed the document and who perceives that such document is void R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration as held in **Yanala Malleshwari** v. **Smt.Ananthula Sayamma** [AIR 2007 AP 57]. 15. In the case at hand, the plaintiff in this case was not a party to the prior decree. If the present plaintiff was not a party to the prior suit and decree, then it could not be contended that the second suit filed by him should be one to set aside or cancel the prior decree. In the case of a document executed by a person, if he wants any relief with reference to it on the ground of fraud, he must have the document cancelled or set aside before he can claim such relief, being himself a party to the same; but a person, who is not a party to any document, is not bound to have it set aside or cancelled in view of the legal precedent discussed hereinabove. To put it differently, the plaintiff not being a party to the document or decree, he cannot have it 'set aside'. All that he can seek for is a R.S.A.No. 308 OF 2021 ..17.. declaration that he is not affected in any way by that document. In the case of a decree, a decree will have full force and binding effect between the parties to the same until it is set aside by the persons, who are parties to the same. However, the persons, who are not parties to the decree, can only sue for a declaration in respect of their rights in relation to the decree. Thus, it is clear that whenever a party to a prior decree wants relief to the effect that he is no longer bound by the prior decree, he should ask for setting aside the prior decree. For the present case, admittedly, the partition decree in the prior case covers a larger extent of property including the property of the plaintiff allegedly owned and possessed by him. In a case where others are also parties to the prior decree and they, in no way, claim the rights under the present plaintiff, then, the prior decree would be binding so far as others are concerned. Hence, the element of fraud as alleged by the plaintiff absolutely lacks in R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** relation to the prior decree. 16. It is true that all the courts and judicial forums in India have inherent power to recall or revoke the order passed earlier when it is shown that such order came to be passed by reason of fraud played on the court. In **Indian Bank** v. **M/s.Satyam Fibres (India) Pvt.Ltd.** [AIR 1996 SC 2592], the Apex Court held that where the court is misled by a party or the court itself commits a mistake which prejudiced a party, the court has the inherent power to recall its order. Going by the decision cited, it is clear that review of the said judgment was sought by the appellant therein, who was a party to the proceedings. 17. Section 100 of the CPC, as amended restricts the rights of second appeal, to only those cases, where a substantial question of law is involved. The general rule is that the High Court will not interfere with the concurrent findings of the courts below. The decision R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** rendered by the two courts below on a material question canvassed before this Court does not violate the settled position of law. There is no debatable issue before this Court which is not covered by settled principle of law or precedents. 18. For the above reasons, this Second appeal is dismissed. In the circumstances of the case, the parties shall bear their respective costs. After pronouncing the judgment, the learned counsel for the appellant seeks the permission of the court to institute a fresh suit for declaration in accordance with law. It is not legal or proper on the part of this Court to dismiss the suit on merits with liberty to institute a fresh suit for declaration on the same cause of action. However, the plaintiff shall be at liberty to file a fresh suit for declaration or such other remedies available to the appellant at his risk, if so advised and permitted by law and subject to the law of limitation. R.S.A.No. 308 OF 2021 **==> picture [28 x 8] intentionally omitted <==** Pending applications, if any, shall stand closed. Sd/( **N.ANIL KUMAR** ) JUDGE MBS/