Sunil Kumar and Bindhu Sunil Kumar v. Jayalakshmi

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 ``` ``` RSA NO. 725 OF 2023 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 20.10.2023 IN AS NO.3 OF 2021 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, ALAPPUZHA ARISING OUT OF THE DECREE AND JUDGMENT DATED 10.03.2021 IN OS NO.656 OF 2017 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** ``` 1SUNILKUMAR AGED 46 YEARS S/O GOPI, KIZHAKKEVELIVEETTIL, AVALCOKUNNU.P.O. , SOUTH ARYAD MURI, KOMALAPURAM VII.LAGE, ALAPPUZHA,, PIN – 688006. ``` ``` 2BINDHU SUNILKUMAR, AGED 41 YEARS, W/O SUNILKUMAR, KIZHAKKEVELIVEETTIL, AVALOOKUNNU. P. O., SOUTH ARYAD MURI, KOMALAPURAM VIIIAGE, ALAPPUZHA, PIN – 688006. ``` ``` BY ADVS. C.G.BINDU AJITHA C.G. ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` JAYALAKSHMI AGED 48 YEARS W/O DEVADAS, KIZHAKKEPEZHAVALLY HOUSE, MANNANCHERRY, KOMALAPURAM VILLAGE, MANNANCHERY.P.O., ALAPPUZHA DISTRICT, PIN – 688538. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2024 ALONG WITH RSA.NO.81/2024, THE COURT ON 15.03.2024 DELIVERED THE FOLLOWING: ``` R.S.A.Nos.725/2023 & 81/2023 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945 ``` ``` RSA NO. 81 OF 2024 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 20.10.2023 IN AS NO.4 OF 2021 OF ASSISTANT SESSIONS COURT/PRINCIPAL SUB COURT / COMMERCIAL COURT, ALAPPUZHA ARISING OUT OF THE DECREE AND JUDGMENT DATED 10.03.2021 IN OS NO.866 OF 2017 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA ``` ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** ``` 1SUNILKUMAR, AGED 53 YEARS S/O. GOPI KIZHAKKEVELIVEETTIL, AVALOOKUNNU.P.O., SOUTH ARYAD MURI, KOMALAPURAM VILLAGE, ALAPPUZHA, PIN – 688006. ``` ``` 2BINDHU SUNILKUMAR, AGED 44 YEARS W/O SUNILKUMAR, KIZHAKKEVELIVEETTIL, AVALOOKUNNU.P.O., SOUTH ARYAD MURI, KOMALAPURAM VIILAGE, ALAPPUZHA, PIN – 688006. ``` ``` BY ADVS. C.G.BINDU AJITHA C.G. K.N.AZHAKESAN ``` ## **`RESPONDENT/RESPONDENT/DEFENDANT:`** ``` JAYALAKSHMI AGED 47 YEARS, W/O DEVADAS, KIZHAKKEPEZHAVALLY HOUSE, MANNANCHERRY, KOMALAPURAM VIILAGE, MANNANCHERY.P.O. ALAPPUZHA DISTRICT, PIN – 688538. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON ``` ``` 11.03.2024 ALONG WITH 725/2023, THE COURT ON 15.03.2024 DELIVERED THE FOLLOWING: ``` R.S.A.Nos.725/2023 & 81/2023 3 ## _**A. BADHARUDEEN, J.**_ _**================================** R.S.A No.725 of 2023 and R.S.A.No.81 of 2024 ================================ Dated this the 15th day of March, 2024_ R.S.A.No.81 of 2024 is at the instance of the plaintiffs in O.S.No.866/2017 on the files of Munsiff Court, Alappuzha and the sole defendant is the respondent in this appeal. 2. R.S.A.No.725 of 2023 is at the instance of the defendants in O.S.No.656/2017 on the files of Additional Munsiff Court, Alappuzha, and the sole plaintiff is the respondent in this appeal. The appellants assail common verdict in A.S.No.3 of 2021 and A.S.No.4 of 2021 as well as common verdict in O.S.No.656/2017 and O.S.No.866/2017 respectively. 3. Heard the learned counsel for the appellants on R.S.A.Nos.725/2023 & 81/2023 4 admission. Perused the verdicts under challenge. 4. I shall refer parties in these Second Appeals as `Jayalakshmi’ and `Sunil Kumar and Bindu’ for convenience. 5. In this matter, O.S.No.656/2017 has been filed by Jayalakshmi as plaintiff arraying Sunil Kumar and Bindu as defendants when she apprehended trespass upon the plaint schedule property and the reclaimed pathway available on the western side of the plaint schedule property in the Suit. 6. Thereafter Sunil Kumar and Bindu as plaintiffs filed O.S.No.866/2017 contending that item No.3 in O.S.No.866/2017 is a pathway available to item Nos.1 and 2 properties in O.S.No.866/2017 and Sunil Kumar and Bindu perfected easement by necessity over the same. 7. Trial court ventured both cases and recorded evidence treating O.S.No.866/2017 as the leading case. PW1 to PW3 were examined and Exts.A1 and A2 were marked on the side of the R.S.A.Nos.725/2023 & 81/2023 5 plaintiffs. DW1 to DW3 were examined and Exts.B1 to B4(a) were marked on the side of the defendant. Exts.C1 series and C2 series were also marked as court exhibits. 8. On appreciation of evidence, the trial court found that the right of easement by necessity over item No.3 pathway in O.S.866/2017 by Sunil Kumar and Bindu, could not succeed since they were provided with pathway towards east to reach the public road on the east at the time of severance of tenements. Hence the claim for easement by necessity over item No.3 pathway was disallowed. Accordingly, O.S.No.866/2017 was dismissed with cost and O.S.No.656/2017 was decreed granting prohibitory injunction, as sought for by Jayalakshmi. 9. The common verdict of the trial court was challenged before the Sub Court, Alappuzha by filing A.S.Nos.3 and 4 of 2021 and the appellate court also concurred the finding of the trial court. 10. The learned counsel for Sunil Kumar and Bindu R.S.A.Nos.725/2023 & 81/2023 6 vehemently argued to contend that plaint item No.3 way in O.S.No.656/2017 is the way available to plaint item Nos.1 and 2 property in the said Suit and therefore, Jayalakshmi could not obstruct the same. It is also argued that trial court as well as the appellate court failed to consider the grievance of Sunil Kumar and Bindu while non-suiting them and granting prohibitory injunction in favour of Jayalakshmi. 11. When the learned counsel was asked how the claim of easement by necessity over plaint item No.3 pathway to plaint item Nos.1 and 2 in O.S.No.866/2017 could succeed, since there is specific finding by the trial court as well as the appellate court holding that an alternative pathway is available to reach plaint item Nos.1 and 2 properties in O.S.No.866/2017, right from the date of severance of tenements, the learned counsel submitted that no such alternative pathway is available and the commission reports in this regard are incorrect. R.S.A.Nos.725/2023 & 81/2023 7 12. Though the learned counsel’s attention was brought to paragraphs 12, 13 and 14 of the trial court judgment, the learned counsel vehemently denied existence of the alternative pathway and asserted right of easement by necessity over item No.3 pathway. 13. While addressing the contention raised by the learned counsel for Sunil Kumar and Bindu, it could be seen from the trial court judgment in paragraphs 12 to 14 that 2 Commissioners were deputed in this matter, one each in O.S.No.656/2027 and O.S.No.866/2017 and Ext.C2 series is the report filed in O.S.No.656/2017. As Ext.C2 series the Commissioner per inspected the property on 29.06.2017 and as per Ext.C1 series the inspection was on 27.09.2017. As per Ext.C2 series the Commissioner reported that a portion on the western side of the defendants’ property having width of 4 meter on the starting point and 3 meter towards east was reclaimed using red sand. The said R.S.A.Nos.725/2023 & 81/2023 8 way being used as pathway to the property of Jayalakshmi. In Ext.C2 series, the Commissioner also reported that a pathway starting from the south-eastern corner of the property of Sunil Kumar and Bindu having width of 1 metre and a length of 40 meter which goes towards south, then turn north, then turn east to reach the Asramam - Kootuvelil road, available to Sunil Kumar and Bindu. The Commissioner also reported that there is a new gap in the fence on the south eastern corner of the property of Sunil Kumar and Bindu. It is also reported by the Commissioner that there is a beaten track on the eastern side of the property of Sunil Kumar and Bindu towards road on the east through the family property of Jayalakshmi. 14. PW2 and DW3 were examined to prove Ext.C2 series and Ext.C1 series respectively. The specific case of Jayalakshmi is that a pathway was provided towards east to the property of Sunil Kumar and Bindu, at the time when they purchased property. In R.S.A.Nos.725/2023 & 81/2023 9 fact, as per Ext.C2 series, another way to the property of Sunil Kumar and Bindu is reported, as already referred. But Sunil Kumar and Bindu would contend that the said way is not in usage. The trial court discussed the evidence of DW3, who authored Ext.C1 series, stating that the way originally available to the property of Sunil Kumar and Bindu was scattered with glass, tube light pieces and grass. Accordingly the learned Munsiff found that Sunil Kumar and Bindu abandoned the way originally available to their property, after reclamation of a new way on the western side of the property of Jayalakshmi, by Jayalakshmi. 15. In the case at hand, an alternative pathway is found though there was an attempt on the part of Sunil Kumar and Bindu to suppress the same. 16. Insofar as claim of easement by necessity is concerned, the same arises when the severance of tenements occurs and once such severed portion is left without a pathway. Here the available R.S.A.Nos.725/2023 & 81/2023 10 evidence suggests that a pathway was provided to the property of Sunil Kumar and Bindu and at the time of severance and the way reclaimed by Jayalakshmi on the western side of the property by levelling the canal was not in existence, at the time of severance. Thereby the trial court as well as the appellate court non-suited Sunil Kumar and Bindu by negating their claim for easement by necessity over item No.3 way in O.S.No.866/2017, while granting decree in favour of Jayalakshmi, in O.S.No.656/2017. 17. It is discernible that Sunil Kumar and Bindu were provided with a pathway having a width of 1 metre and 40 metre length at the time of severance and item No.3 is the way which came into existence much after the severance, when Jayalakshmi reclaimed the said way. Therefore, the claim of easement by necessity raised by Sunil Kumar and Bindu could not succeed as rightly found by the trial court as well as the appellate court. In fact, nothing argued to substantiate any substantial question of law R.S.A.Nos.725/2023 & 81/2023 11 to admit and maintain these appeals where the trial court as well as the appellate court concurrently found against claim of easement by necessity and as such there is no substantial question of law arises to admit and maintain these appeals. 18. In order to admit and maintain a Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with Section 100 of C.P.C. 19. In these cases, the learned counsel for the appellants failed to raise any substantial question of law warranting admission of the Second Appeals. 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 defendant to urge any other ground in the appeal without the leave of the Court, given in accordance with the_ R.S.A.Nos.725/2023 & 81/2023 12 _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. 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 R.S.A.Nos.725/2023 & 81/2023 13 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 in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], _**Nazir Mohamed v. J. Kamala and Others**_ reported in 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.**_ 22. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], _**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_ R.S.A.Nos.725/2023 & 81/2023 14 _substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 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 law on which a second appeal shall be heard need not necessarily be a R.S.A.Nos.725/2023 & 81/2023 15 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 without being admitted. All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_