Thankachan and Beena Thankachan v. Jomon

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945** **RSA NO. 121 OF 2024** **AGAINST THE JUDGMENT AND DECREE DATED 31.01.2024 IN AS NO.44 OF 2022 OF SUB COURT/COMMERCIAL COURT, PALA ARISING OUT OF THE JUDGMENT AND DECREE DATED IN OS NO.181 OF 2018** **OF MUNSIFF COURT, PALA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 THANKACHAN AGED 59 YEARS S/O. JOHN, KURIKKUNNEL HOUSE, VALAVOOR KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686574 2 BEENA THANKACHAN AGED 49 YEARS W/O. THANKACHAN, KURIKKUNNEL HOUSE, VALAVOOR KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686574 BY ADVS. GEORGE MATHEW SUNIL KUMAR A.G ELSA DENNY PINDIS MATHEW K.T. GEORGE K.V. STEPHY K REGI MEDHA B.S.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **JOMON AGED 52 YEARS /O. JOHN, KURIKKUNNEL HOUSE, VALAVOOR KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT, PIN - 686574** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 121 OF 2024** **2** ## **JUDGMENT** Dated this the 7[th] day of March, 2024 This regular second appeal filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure is at the instance of the defendants in O.S.No.181/2018 on the files of the Munsiff's Court, Pala and defendants assail decree and judgment dated 13.12.2021 in the above suit and also the decree and judgment dated 31.01.2024 in A.S. No.44/2022, on the files of the Sub Court, Pala. Respondent herein is the plaintiff in the above suit. 2. Heard the learned counsel for the appellants/defendants on admission. Perused the verdicts under challenge. 3. I shall refer the parties in this regular second appeal as “plaintiff” and “defendants”. 4. Originally, suit for permanent prohibitory injunction as well as mandatory injunction was filed by the plaintiff by **RSA NO. 121 OF 2024** **3** asserting title over the plaint schedule property and the building therein, on the strength of a settlement deed No.463/2014 of Meenachil SRO, executed by the mother of the plaintiff in favour of the plaintiff. According to the plaintiff, now the defendants are residing in the plaint schedule property and they are liable to vacate the same since they did not have any right over the same. 4. The defendants filed written statement disputing the settlement deed contending that the same was executed fraudulently. 5. The trial court recorded evidence and ventured the matter. PW1 and PW2 examined and Exts.A1 to A6 were marked. DW1 to DW3 examined and no evidence let in by the defendants. Exts.C1 to C1(a) were also marked. 6. Even though the defendants disputed the authenticity of the settlement deed, marked as Ext.A1, the trial court relied on the evidence of DW2, Annamma John, the executant of Ext.A1, who is none other than the mother of the **RSA NO. 121 OF 2024** **4** plaintiff, and the first defendant. She deposed in terms of execution of Ext.A1 and also to the effect that she voluntarily executed the same with intention to confer title upon the plaintiff. Accordingly, prohibitory as well as mandatory injunction were granted by the trial court. 7. In A.S.No.44/2022 filed before the Sub Court, Pala, the verdict of the trial court was assailed and the appellate court also dismissed the appeal, confirming the verdict of the trial court while granting time for vacating the premises on or before 31.05.2023. The learned counsel for the defendants, vehemently attacked Ext.A1 as a fraudulent document. But when paragraph Nos.12 and 13 of the trial court judgment is brought to the notice of the learned counsel, discussing the evidence of DW2 who authored Ext.A1, the learned counsel for the defendants also conceded the same. In fact, Ext.A1 found to be a legally executed document with intention to confer title upon the plaintiff and therefore, the challenge raised by the defendants could not succeed in any manner. **RSA NO. 121 OF 2024** **5** 8. On evaluation of materials, there is nothing in this matter to hold that the findings entered by the trial court and confirmed by the appellate court are either erroneous or illegal in any manner and the concurrent verdicts do not require any interference at the hands of this Court by admitting and maintaining this regular second appeal. 9. In this case, in fact, the learned counsel for the defendants 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.”_ **RSA NO. 121 OF 2024** **6** 10. 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 **RSA NO. 121 OF 2024** **7** 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. 11. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 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 referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 12. 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, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC** **RSA NO. 121 OF 2024** **8** ## **179] (three – Judge** Bench) _,_ 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._ 13. 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 **RSA NO. 121 OF 2024** **9** 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. 14. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 15. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. 16. The learned counsel for the defendants initially sought time till December, 2024 and then sought time till September, 2024 for vacating the building. In fact, the first **RSA NO. 121 OF 2024** **10** appellate court granted time upto 31.05.2023. Therefore, considering the fact that the parties are siblings and also taking note of the fact that the defendants have been residing in the building without paying any fee for use and occupation, time to vacate the building stands extended till 31.08.2024, provided the defendants shall file an affidavit before the trial court within a period of two weeks from today, undertaking to vacate the building on or before 31.08.2024. If no such affidavit will be filed within two weeks, as directed, the grace period granted by this Court shall not be available to the defendants and the decree impugned can be put in execution without waiting for the said period. 20. All interlocutory applications pending in this regular second appeal stands dismissed. Registry shall inform this matter to the trial court as well as the appellate court forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr