Thirupuram Grama Panchayath v. K. Padmini K.P Nivas and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 24[TH] DAY OF JANUARY 2024 / 4TH MAGHA, 1945 RSA NO. 668 OF 2023 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 02.07.2022 IN A.S.NO.13/2016 ON THE FILES OF THE COURT OF THE SUB JUDGE, NEYYATTINKARA AROSE FROM THE DECREE AND JUDGMENT DATED 31.07.2015 IN O.S.NO.176/2009 ON THE FILES OF THE ADDITIONAL MUNSIFF COURT-I, NEYYATTINKARA ``` ## **`APPELLANT/1ST DEFENDANT:`** ``` THIRUPURAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF THE THIRUPURAM GRAMA PANCHAYATH, PAZHAYAKADA, THIRUPURAM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT, PIN - 695133 ``` ``` BY ADVS. K.S.BHARATHAN ALPHIN ANTONY VISAKH ANTONY AADITHYAN S.MANNALI ALEENA SONY ``` ## **`RESPONDENTS/1ST PLAINTIFF:`** - **`1 K. PADMINI K.P NIVAS, EZHAKUDIYVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, PIN - 695133`** - **`2 ANIL KUMAR S/O PADMINI, K.P NIVAS, EZHAKUDIYVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, PIN - 695133`** - **`3 BINUKUMAR S/O PADMINI, K.P NIVAS, EZHAKUDIYVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, PIN - 695133`** - **`4 K.P SAJEEV S/O PADMINI, K.P NIVAS, EZHAKUDIYVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, NEYYATTINKARA TALUK, PIN - 695133`** ``` R.S.A. No. 668 of 2023 ``` ``` 2 ``` - **`5 THE DISTRICT COLLECTOR THIRUVANANTHAPURAM COLLECTORATE, CIVIL STATION, KUDAPANAKUNNU, THIRUVANANTHAPURAM, PIN - 695043`** - **`6 THE CHIEF SECRETARY GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM PIN - 695001`** - **`7 BLOCK PANCHAYATH REPRESENTED BY ITS SECRETARY, PARASSALA BLOCK PANCHAYATH OFFICE, PIN - 695502`** ``` SR GP - K .DENNY DEVASSY – R5 & R6 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 24.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 668 of 2023 ``` ``` 3 ``` ## **JUDGMENT** ## **Dated this the 24[th] day of January, 2024** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.13 of 2016 dated 02.07.2022 on the files of the Court of the Sub Judge, Neyyattinkara arose from the decree and judgment in O.S. No.176 of 2015 dated 31.07.2015 on the files of the Additional Munsiff Court-I, Neyyattinkara. The appellant is the 1[st] defendant and the respondents are plaintiffs in O.S. No.176 of 2015 as well as the District Collector, the Chief Secretary and the Block Panchayat. 2. Heard the learned counsel for the appellant and the learned Government Pleader appearing for respondents 5 and 6, on admission. Perused the relevant materials and the verdicts under challenge. 3. I shall refer the parties in this appeal with reference to their status before the trial court. ``` R.S.A. No. 668 of 2023 ``` ``` 4 ``` 4. In this matter, plaintiffs filed suit and sought the relief of mandatory as well as prohibitory injunction. The precise allegation is that, a private way available as part of the plaint schedule items in a previously instituted suit, viz. O.S. No.3/1978, was tarred by the 1[st] defendant, Thirupuram Grama Panchayat, on the guise that the same is a public way, vested in Panchayat. According to the plaintiffs, the plaint schedule pathway is not a public road vested in the Panchayat and it is a way provided to the sharers of the plaint schedule properties in O.S. No.3/1978. Therefore, plaintiffs sought the relief to remove the tar and metal placed by the 1[st] defendant/Panchayat therein and restore the same in its original state. 5. The 1[st] defendant/Panchayat filed written statement and asserted the plaint schedule way as a public road. It is also stated in the written statement that, the said road is included in the Asset Register of Thirupuram Grama Panchayat and the road was tarred by the Block Development Office, Parassala. 6. The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 and 2 ``` R.S.A. No. 668 of 2023 ``` ``` 5 ``` examined and Exts.A1 to A5 marked on the side of the plaintiffs. DWs 1 to 3 examined and Ext.B1 marked on the side of the defendants. Exts.C1 and C2(a) marked as Court exhibits. 7. The trial court while adjudicating the dispute, after recording evidence and on hearing both sides, found that the plaint schedule property is a way provided to the sharers in O.S. No.3/1978 and the same is not a public road as contended by defendants. Accordingly, suit was decreed directing the defendants to remove the tar and metal put on the plaint schedule property and to restore plaint schedule property in its original state. 8. Though, appeal was filed before the Appellate Court, vide A.S. No.13/2016, the Appellate Court also reappreciated the evidence and concurred the finding of the trial court. 9. On perusal of the verdicts of the Courts below, it could be gathered that, PW2 examined in this case was the Commissioner, who prepared Ext.A2 report and plan in O.S. No.3/1978 and his evidence is that the disputed plaint schedule property is a way provided for the plaint schedule ``` R.S.A. No. 668 of 2023 ``` ``` 6 ``` properties in O.S. No.3/1978. 10. At the time of argument, the learned counsel for the 1[st] defendant/appellant relied on Ext.B1 computer extract of Asset Register report to assert that the plaint schedule property is a public way. 11. But, it could be gathered from the discussion from the verdicts of the Courts below that, as per Ext.B1, the plaint schedule property was included as a public road in the year 2000. In fact, the road in question is part and parcel of the plaint schedule items in O.S. No.3/1978 and final decree proceedings in relation to the same has been pending. 12. Since the contention raised by the 1[st] defendant holding the plaint schedule property as a public road could not be found and it could be seen from the evidence, particularly as that of PW2 that the plaint schedule property is a way provided to the plaint schedule items in O.S. No.3/1978. Therefore, the contention of the 1[st] defendant/appellant could not be found and accordingly the trail court and the Appellate Court rightly negatived the said contention and granted reliefs to the plaintiffs. Thus, the concurrent verdicts of the trial court and Appellate Court do ``` R.S.A. No. 668 of 2023 ``` ``` 7 ``` not require any interference at the hands of this Court. 13. In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular second appeal. Order XLII Rule 2 of CPC 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. ” 14. Section 100 of CPC 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 ``` R.S.A. No. 668 of 2023 ``` ``` 8 ``` 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 stipulates 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. 15. 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, ``` R.S.A. No. 668 of 2023 ``` ``` 9 ``` 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].** 16. 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 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. 17. 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 CPC, the Court shall formulate ``` R.S.A. No. 668 of 2023 ``` ``` 10 ``` 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 CPC must be complied to admit and maintain a second appeal. 18. In the instant case, it appears that the concurrent verdicts entered into by the trail court as well as by the Appellate Court, based on the facts and evidence, are found ``` R.S.A. No. 668 of 2023 ``` ``` 11 ``` to be in order. Therefore, the same does not require any interference at the hands of this Court. 19. In this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal involving no substantial question of law cannot be admitted. Therefore, the decree and judgment under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal. 20. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications pending in this regular second appeal stand dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK