Sulomoni V.N vs P. Sudha and others (Regular Second Appeal Nos. 592 of 2023 and 593 of 2023)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 ``` ``` RSA NO. 592 OF 2023 ``` ``` AGAINST THE DECREE/JUDGMENT DT. 30.09.2021 IN OS 400/2017 OF MUNSIFF COURT, CHANGANACHERRY DECREE/JUDGMENT IN A.S 87/2021 DATED 24.07.2023 OF ADDITIONAL DISTRICT COURT-V,KOTTAYAM ``` ## **`APPELLANTS/RESPONDENTS/DEFENDANTS:`** ``` 1P. SUDHA, AGED 56 YEARS W/O. A.N. VIJAYAN, KUMARAN NIVAS, MUTHOOR P.O., CHUMATHARA ROAD, THIRUVALLA VILLAGE, THIRUVALLA, PIN - 689107 REP. BY THE POWER OF ATTORNEY HOLDER DIVYA VIJAYAN, AGED 40 YEARS, D/O. A.N. VIJAYAN, VYSAKH HOUSE, KATTOOKKARA P.O., THIRUVALLA, PIN - 689101 2A.N. VIJAYAN, AGED 70 YEARS S/O. LAKSHMANAN ACHARI, KUMARAN NIVAS, MUTHOOR P.O., CHUMATHARA ROAD, THIRUVALLA VILLAGE, THIRUVALLA, PIN - 689107 REP. BY THE POWER OF ATTORNEY HOLDER DIVYA VIJAYAN, AGED 40 YEARS, D/O. A.N. VIJAYAN, VYSAKH HOUSE, KATTOOKKARA P.O., THIRUVALLA, PIN - 689101 BY ADVS. ABRAHAM P.GEORGE M.RAJENDRAN NAIR M.SANTHY JOHNY THOMAS M.B.RATHEESH JOSE K.V. SANDRA K. SANJAY AKASH PHILIP ELSA JACOB ``` _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 2 ## **`RESPONDENT/APPELLANT/PLAINTIFF:`** ``` SULOMONI V.N, AGED 60 YEARS W/O. A.N. SOMAN, 'SUMANGALY' HOUSE, CHAMPAKKARA MURI, KARUKACHAL VILLAGE, REP. BY HER POWER OF ATTORNEY A.S. RAJESH, AGED 46 YEARS, S/O. A.N. SOMAN, SUMANGALY HOUSE, CHAMPAKKARA MURI, KARUKACHAL VILLAGE, KARUKACHAL, PIN – 686540. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2023 ALONG WITH RSA.NO.593/2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING: ``` _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945 RSA NO. 593 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT OS 365/2018 OF MUNSIFF COURT, ``` ``` CHANGANACHERRY ``` ``` AS 88/2021 OF ADDITIONAL DISTRICT COURT,KOTTAYAM ``` ## **`APPELLANTS/RESPONDENTS/PLAINTIFFS:`** ``` 1P. SUDHA AGED 56 YEARS KUMARAN NIVAS, MUTHOOR P.O., CHUMATHARA ROAD, THIRUVALLA VILLAGE, THIRUVALLA, REP. BY THE POWER OF ATTORNEY HOLDER DIVYA VIJAYAN, AGED 40 YEARS, D/O. A.N. VIJAYAN, VYSAKH HOUSE, KATTOOKKARA P.O., THIRUVALLA, PIN - 689101 2A.N. VIJAYAN AGED 70 YEARS S/O. LAKSHMANAN ACHARI, KUMARAN NIVAS, MUTHOOR P.O., CHUMATHARA ROAD, THIRUVALLA VILLAGE, THIRUVALLA, REP. BY THE POWER OF ATTORNEY HOLDER DIVYA VIJAYAN, AGED 40 YEARS, D/O. A.N. VIJAYAN, VYSAKH HOUSE, KATTOOKKARA P.O., THIRUVALLA, PIN - 689101 BY ADVS. ABRAHAM P.GEORGE M.RAJENDRAN NAIR M.SANTHY JOHNY THOMAS M.B.RATHEESH JOSE K.V. AKASH PHILIP ELSA JACOB SANDRA K. SANJAY ``` _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 4 ## **`RESPONDENT/APPELLANT/DEFENDANT`** ``` SULOMONI V.N AGED 60 YEARS SUMANGALY HOUSE, CHAMPAKKARA MURI, KARUKACHAL VILLAGE, REP. BY HER POWER OF ATTORNEY A.S. RAJESH, AGED 46 YEARS, S/O. A.N. SOMAN, SUMANGALY HOUSE, CHAMPAKKARA MURI, KARUKACHAL VILLAGE, KARUKACHAL, PIN – 686540. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.09.2023 ALONG WITH RSA.NO.592/2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING: ``` _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 5 ## _**A. BADHARUDEEN, J.**_ _**================================** R.S.A.No.592 of 2023 and R.S.A.No.593 of 2023 ================================ Dated this the 6th day of October, 2023_ ## _**COMMON JUDGMENT**_ R.S.A.No.592 of 2023 has been filed under Section 100 read with Order 42 Rule 1 of the Code of Civil Procedure (`CPC’ for short hereinafter), challenging the decree and judgment in A.S.No.87/2021 dated 24.07.2023 on the files of the Additional District Court-V, Kottayam, arising out of the decree and judgment in O.S.No.400/2017 dated 30.09.2021 on the files of the Munsiff’s Court, Changanassery. The appellants herein are the defendants in O.S.No.400/2017 and respondents in A.S.No.87/2021. 2. R.S.A.No.593/2023 also has been filed by the same appellants challenging the decree in A.S.No.88/2021 dated _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 6 24.07.2023 arising out of O.S.No.365/2018 dated 30.09.2021. The appellants herein are the plaintiffs in O.S.No.365/2018 and the respondents in A.S.No.88/2021. 3. Heard the learned counsel for the appellants on admission. 4. In both these appeals, respondent is Sulomoni.V.N, who is the plaintiff in O.S.No.400/2017 and the defendant in O.S.No.365/2018. 5. I shall refer the parties to this appeal as `Sulomoni’ and `P.Sudha and another’, for convenience. 6. The case put up by `Sulomoni’ in brief: A.S.Rajesh, S/o.A.N.Soman, is the power of attorney holder of Smt.Sulomoni. who conducted the case for `Sulomoni’. Smt.Sulomoni, filed O.S.No.400/2017 and sought the relief of permanent prohibitory injunction restraining the defendants and their men from obstructing plaint item No.2 `way’ and plaint item _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 7 No.3 `gate’. Further, there was a prayer to open plaint item No.3 gate, so as to facilitate use of item No.2 by Sulomoni. 7. Sudha and another resisted the Suit denying the right claimed by Sulomoni in respect of plaint item No.2, `way’ and use of the said way and item No.3 gate. Accordingly they sought the relief of permanent prohibitory injunction against Sulomoni from using plaint item No.2 `way’ and plaint item No.3 `gate’. 8. The trial court jointly tried O.S.No.365/2018 and 400/2017. PWs 1 and 2 were examined and Exts.A1 to A5 were marked on the side of the plaintiff, treating O.S.No.400/2017 as the leading case. DWs 1 to 3 were examined and Exts.B1 to B4 were marked on the defence side. Exts.C1, C1(a) and C2 were also marked. 9. On analysis of the evidence, the learned Munsiff dismissed O.S.No.400/2017 and decreed O.S.No.365/2018 restraining the defendant in O.S.No.365/2018 from obstructing the _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 8 use of plaint schedule item No.2 `way’ by Sulomoni. 10. Aggrieved by the judgment and decree of the trial court, Sulomoni filed A.S.No.87/2021 (against O.S.No.400/2017) and A.S.No.88/2021 (against O.S.No.365/2018). The learned Additional Sessions Judge re-appraised the evidence and reversed the judgment and decree of the trial court. Accordingly, the appellate court dismissed O.S.No.365/2018 and decreed O.S.No.400/2017 as under: _(a) The defendant in OS No.400/2017 are directed to open the plaint schedule gate within a period of 15 days from today so as to enable to appellant/plaintiff to use to gate and 8 feet width way without any obstruction as it had been enjoyed by her earlier._ _(b) The defendants in OS No.400/2017 are restrained from locking the plaint schedule gate and causing any inconvenience to the plaintiff for using the gate._ _(c) The defendants shall not make any obstruction to the plaintiff from using the gate and also the way for her entry to the plaint item No.1 property._ _(d) Exts.C1(a) and C2(a) shall form part of the decree. (e) The appellant/plaintiff shall be entitled to costs of the suit and the appeals._ 11. Challenging the said verdict of the appellate court, these _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 9 appeals have been filed. At the time of hearing the matter on admission, the learned counsel for Sudha and another raised a specific contention that the appellate court went wrong in finding that Sulomoni has right of way through plaint item No.2 since as per the narration in Ext.A2 sale deed No.243/1984, the right of way provided to the property of Sulomoni is confined to half cent, though it has been narrated in Ext.A2 that the width of the way is 8 feet. It is zealously argued by the learned counsel for P.Sudha and another that even though the width of the pathway is shown as 8 feet, the right of way available to Sulomoni is confined to half cent and the said way is not plaint item No.2 way. He also pointed out that the way described in Ext.A2 title deed was wrongly described in the plaint schedule as item No.2. According to the learned counsel for P.Sudha and another, plaint item No.2 is a way provided to P.Sudha and another and the same is not the one intended for the use of Sulomoni. _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 10 12. When the learned counsel for P.Sudha and another was asked to justify the substantial question of law to admit this appeal, the learned counsel pointed out the factual aspects to admit these appeals, for adjudication. 13. On perusal of the judgment and decree of the appellate court, it is discernible that Sulomoni claimed title to plaint item No.1 described in O.S.No.400/2017 and item No.2 pathway based on Ext.A2, copy of sale deed No.243/1984. At the same time, P.Sudha and another relied on sale deed Nos.246/1984 and 242/1984 marked as Exts.B1(A4) and B2(A3) to assert their title to the plaint schedule properties in O.S.No.365/2018. In the copy of decree, plaint item No.2 in O.S.No.400/2017 is described as `way’ available through the eastern side of item No.1 property in the south-north direction having a width of 8 feet having an extent of half cent plus excess land. Plaint item No.3 in O.S.No.400/2017 is described as `the iron gate’ put up on the southern proximity of _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 11 item No.2 `way’. On perusal of the copy of Ext.A2, the `way’ provided to Sulomoni is stated as _28 1/2_ സെ ന്റുള്ളതുമായവസ്തുവിൽ വടക്കുഭാഗം കിഴക്കു പടിഞ്ഞാറുതീർത്തു എട്ടുസെ ന്റുംമ മൊത്തം വസ്തുവിൽ _12 1/4_ സെ ന്റിൽകിഴക്കരികിൽതെ ക്കുവടക്കുതീർത്തും കിഴക്കു പടിഞ്ഞാറ് _8_ അടി വീതിയിലുള്ള അര സെ ന്റും കൂടി വിരിവിന്റെ വീതം ഉൾപ്പെടെ _8 1/2_ സെ ന്റ്‌ മൂന്നു ആർ നാൽപതു ചതുരശ്ര മീറ് ുള്ളവസ്തുവുംഅതിലുള്ളസകലവകകളുമാകുന്നു _._ 14. In Ext.B2(A3) title deed of P.Sudha, the property is described as _28 1/2_ സെ ന്റുള്ളതുമായ വസ്തുവിൽ വടക്കുഭാഗം _8_ സെ ന്റിന്ത തൊട്ടു തെ ക്കു ഭാഗം കിഴക പടിഞ്ഞാറുതീർത്തു _6 1/4_ സെ ന്റുംടി _28 1/ 2_ സെ ന്റിൽതെ ക്കുവശമുള്ള _14 1/4_ സെ ന്റിൽകിഴക്കു ഭാഗംതെ കകവടകകതീർത്തുംകിഴകകപടിഞ്ഞാറ് _8_ അടിവീതിയിലുമുള്ള സ്ഥലംനീക്കിയുള്ളതിൽവടകകഭാഗംകിഴകകപടിഞ്ഞാറ്തീർത്തുടി _6 1/4_ സെ ന്റിന ോട്ചേർന്നു _3 3/4_ സെ ന്റുംകൂടിവിരിവുൾപ്പെടെ പത്തു സെ ന്റിനുനാല്ആറുള്ളവസ്തുവുംഅതിലുള്ളസകലവകകളുമാകുന്നു _._ 15. Similarly in Ext.B1(A4) the description of the property is that വിരിവുൾപ്പെടെ _28½_ സെ ന്റ്വിസ്തീര്ണമുള്ളതുമായ വസ്തുവിൽ എനിക അവകാശപ്പെട്ട പകുതി തെ ക്കു ഭാഗത്തിൽ കിഴക്കരികിൽ തെ ക്കു വടക്കു നീളത്തിലും കിഴക്കു പടിഞ്ഞാറ് _8_ അടി വീതിയിലുമുള്ള സ്ഥലം നീക്കിയുള്ളതിൽ തെ ക്കു ഭാഗം കിഴക്കു പടിഞ്ഞാറ് തീർത്തു വിരിവിലെ വീതം ഉൾപ്പെടെ പത്തു സെ ന്റിന്‌ _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 12 നാല്ആറുള്ളവസ്തുവുംഅതിലുള്ളസകലവകകളുമാകുന്നു _._ 16. In the plaint also, in paragraph 14, the way is described as one having 8 feet width on the eastern side of the plaint item No.1 property in the south-north direction and the extent is described as half cent plus excess land. Thus reading Exts.A2, B1(A4) and B2(A3), it is emphatically clear that the 8 feet width area of property has been set apart specifically for the purpose of way and the said way is described as plaint item No.2 in O.S.No.400/2017 as way having 8 feet width and the extent of property as ½ cent plus excess land. 17. In this matter, commission report, Ext.C1, rough sketch, C1(a), Ext.C2 commission report and Ext.C2(a) rough sketch were discussed by the trial court as well as the appellate court. The appellate court found that as per Exts.C1, C1(a), C2 and C2(a), the plaintiff in O.S.No.400/2017 has no vehicular access to her property if plaint item No.2 `way’ is blocked. In the commission reports also, existence of the said way was reported. It is _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 13 pertinent to note that P.Sudha and another and Sulomoni purchased their respective properties on the same day providing 8 feet width pathway to the property of Sulomoni. No attempt was made in this case to measure the property which is located in the commission report having a width of 8 feet to see that the same is more than half cent in extent. It is pertinent to note that the extent of land described as 8 feet way is not half cent alone, but the same is half cent plus excess land. Segregation of 8 feet width way has been well narrated in Exts.B1 and B2, as already described. Thus overall evaluation of the materials available would go to show that, as contended by Sulomoni, both parties purchased properties after providing vehicular way and they jointly put up the plaint item No.2 keeping vehicular access to both parties in tune with the description in the title deed of Sulomoni. Therefore, it has to be held that the strained relationship after the construction of the commercial building by _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 14 P.Sudha and another in their property shall not be a ground to deny the right of way provided by Sulomoni on the basis of her title deed and rightly identified by the commissioner without any ambiguity. In view of the matter, it appears that the appellate court is right in reversing the judgment and decree of the trial court. 18. Though the learned counsel for the appellant was asked to justify substantial question or questions of law involved in this case, he could not exactly point out any substantial question of law, so as to admit and maintain the Second Appeal, where formulation of substantial question of law by the appellate court is mandatory, as provided under Section 100 r/w Order 42 Rule 1 of C.P.C. ## 19. 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_ _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 15 _the leave of the Court, given in accordance with the provision of section 100.”_ 20. 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. _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 16 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. 21. In the decision reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ , 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 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_ _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 17 _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 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_ _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 18 _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 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_ _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 19 _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._ 22. In a latest decision of the Apex Court reported in ## _**Government of Kerala v. Joseph**_ , 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]** (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_ _R.S.A.No.592/2023 & R.S.A.No.593/2023_ 20 _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._ 23. 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 _R.S.A.No.592/2023_ _& R.S.A.No.593/2023_ 21 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. 24. 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 in limine. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_