Unnikrishnan K.K. v. Kanakam K.K.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945** **RSA NO. 408 OF 2023** **AGAINST THE DECREE AND JUDGMENT DATED 25.11.2021 IN AS 135/2019 OF ASSISTANT SESSIONS COURT/II ADDITIONAL SUB COURT, THRISSUR AGAINST THE DECREE AND JUDGMENT DATED 22.03.2018 IN OS 4511/2011 OF II ADDITIONAL MUNSIFF COURT, THRISSUR** ## **APPELLANT/APPELLANT/PLAINTIFF:** **UNNIKRISHNAN K.K AGED 67 YEARS S/O KOCHUKUTTAN, KOOTHUPARAMBIL HOUSE, ARNATTUKARA VILLAGE, LALURDESOM, ELTHURUTHU P.O, THRISSUR, PIN - 680611 BY ADV ATHIRA A.MENON** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 KANAKAM K.K W/O.ITTICYACHAN & D/O.KOOTHUPARAMBIL KOCHUKUTTAN HOUSE NO. 138,TMC 50/UA, THRISSUR CORPORATION, MATHAIPURAM ROAD, LALURDESOM, ARNATTUKARA VILLAGE,THRISSUR TALUK, THRISSUR DISTRICT -680618. NOW RESIDING AT KOOTHUPARAMBIL HOUSE, ARNATTUKARA VILLAGE, LALURDESOM, ELTHURUTHU P.O, THRISSUR, PIN - 680611** - **2 RADHIKA K.K W/O KRISHNAN, CHITTER HOUSE, PUTHIYANGADY DESOM THALIKKULAMP.O, THRISSUR, PIN – 680569** **3 JANARDHANAN K.K S/O,KOCHUKUTTAN, KOOTHUPARAMBIL HOUSE, AYYANTHOLE P.O, UDAYA NAGAR,9TH STREET, THRISSUR, NOW RESIDING AT ROOM NO.F4, ALUKKAS FLAT, VALIYALUKKAL P.O KANNIMANGALAM, THRISSUR-680027, PIN - 680027** **BY ADV SMITHA VARGHESE** **2** **RSA Nos.775 OF 2022 & 408 OF 2023** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024 ALONG WITH RSA.775/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** **RSA Nos.775 OF 2022 & 408 OF 2023** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 22[ND] DAY OF JANUARY 2024 / 2ND MAGHA, 1945 RSA NO.775 OF 2022** **AGAINST THE DECREE AND JUDGMENT DATED 25.11.2021 IN AS 132/2019 OF II ADDITIONAL SUB COURT, THRISSUR AGAINST THE DECREE AND JUDGMENT DATED 22.03.2018 IN OS 1126/2015 OF II ADDITIONAL MUNSIFF COURT ,THRISSUR** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 4:** - **1 UNNIKRISHNAN K.K., AGED 67 YEARS S/O KOCHUKUTTAN, KOOTHUPARAMBIL HOUSE, ARNATTUKARA VILLAGE, LALUR DESOM, ELTHURUTHU P.O., THRISSUR., PIN - 680611** - **2 SHYAJA, AGED 49 YEARS, W/O UNNIKRISHNAN, KOLOTHUMPARAMBIL HOUSE, ARANATTUKARA VILLAGE, LALUR DESOM, ELTHURUTH P.O., THRISSUR, PIN- 680611 BY ADV ATHIRA A.MENON** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & 2ND & 3RD** ## **DEFENDANT:** **1 KANAKAM K.K., AGED 53 YEARS W/O. ITTICYACHAN & D/O. KOOTHUPARAMBIL KOCHUKUTTAN HOUSE NO. 138, TMC 50/UA, THRISSUR CORPORATION, MATHAIPURAM ROAD, LALUR DESOM, ARNATTUKARA VILLAGE,** **4** **RSA Nos.775 OF 2022 & 408 OF 2023** **THRISSUR TALUK, THRISSUR DISTRICT-680618. NOW RESIDING AT KOOTHUPARAMBIL HOUSE, ARNATTUKARA VILLAGE, LALUR DESOM ELTHURUTHU P.O., THRISSUR 680 611** **2 RADHIKA.K.K AGED 47 YEARS W/O KRISHNAN,CHITTER HOUSE, PUTHIYANGADI DESOM,THALIKULAM.P.O, THRISSUR-680 569. 3 JANARDHANAN K.K, AGED 50 YEARS, S/O. KOCHUKUTTAN, KOOTHUPARAMBIL HOUSE, AYYANTHOLE P.O., UDAYA NAGAR, 9TH STREET, THRISSUR, NOW RESIDING AT ROOM NO.F4, ALUKKAS FLAT, VALIYALUKKAL P.O., KANNIMANGALAM, THRISSUR, PIN- 680027. BY ADV SMITHA VARGHESE** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22.01.2024 ALONG WITH RSA.408/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA Nos.775 OF 2022 & 408 OF 2023** **5** ## **COMMON JUDGMENT** Dated this the 22[nd] day of January, 2024 These regular second appeals have been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908, (hereinafter referred to as 'CPC' for short). 2. RSA No.408/2023 is at the instance of the plaintiff in O.S.No.4511/2011 on the files of the II Additional Munsiff Court, Thrissur, assailing decree and judgment in A.S.No.135/2019 on the files of the Additional Sub Judge-II Thrissur, arose out of the decree and judgment in O.S.No.4511/2011. The respondents herein are the defendants. 3. RSA No.775/2022 is at the instance of defendants 1 and 4 in O.S.No.1126/2015 on the files of the II Additional Munsiff Court, Thrissur, assailing decree and judgment in A.S.No.132/2019 on the files of the Additional Sub Judge-II **RSA Nos.775 OF 2022 & 408 OF 2023** **6** Thrissur, arose out of the decree and judgment in O.S.No.1126/2015. The respondents herein are the plaintiff and 2[nd] and 3[rd] defendants. 4. Heard the learned counsel for the appellants as well as the learned counsel appearing for the 1[st] respondent on admission. 5. I shall refer the parties in these regular second appeals as ‘Unnikrishnan and others’ and ‘Kanakam and others’ for convenience. 6. Precisely, Unnikrishnan filed suit, as OS No.4511/2011, to set aside settlement deed No.1317/1999 executed by Neelikutty in favour of Kanakam in continuation of release deed executed by the legal representatives of Kochukuttan inclusive of Unnikrishnan. Kanakam and others resisted the suit and filed another suit, as O.S No.1126/2015, seeking mandatory injunction directing Unnikrishnan to vacate the plaint schedule property, where Kanakam **RSA Nos.775 OF 2022 & 408 OF 2023** **7** perfected title as per settlement deed No.1317/1999 on asserting that Unnikrishnan had been in possession of the same as a trespasser. 7. The learned legal aid counsel for Unnikrishnan argued at length to convince this Court that the settlement deed, relied upon by Kanakam to assert title upon the plaint schedule property, is one generated by fraud. It is submitted by the learned counsel further that originally, the property belonged to Kochukuttan, the father of Kanakam and Unnikrishnan. On the death of Kochukuttan, all parties, including Unnikrishnan, executed release deed in favour of the mother. According to the learned legal aid counsel for Unnikrishnan, the release deed No.227/1991 was executed to facilitate availing of loan by the mother in the absence of the parties, including Unnikrishnan, since Unnikrishnan was employed in Mumbai at the relevant time. Therefore, it is argued that either Ext.A1 release deed or Ext.A2/Ext.B1 **RSA Nos.775 OF 2022 & 408 OF 2023** **8** settlement deed No.1317/1999 executed by the mother in favour of Kanakam would not confer any right upon Kanakam. 8. Refuting this contention, the learned counsel for Kanakam submitted that after the death of the father, all parties jointly executed a release deed in the year 1991 in favour of the mother and while the mother was holding the property, she executed settlement deed No.1317/1999, marked as Ext.A2/Ext.B1, in favour of Kanakam and thereby Kanakam perfected title upon the property. Since Unnikrishnan has been in possession of the building, Kanakam filed suit as O.S.No.1126/2015 for the relief of mandatory injunction to vacate the same. According to the learned counsel for Kanakam, no substantial questions of law arise in these matters and no evidence let in by Unnikrishnan to upset Ext.A2/Ext.B1 settlement deed executed by the mother in favour of the mother. **RSA Nos.775 OF 2022 & 408 OF 2023** **9** 9. On perusal of the verdicts under challenge, it is discernible that in the year 2011, Unnikrishnan filed a suit to set aside a settlement deed executed in the year 1999 and his contention was that the release deed, marked as Ext.A1, executed by him along with other legal representatives in favour of mother, was one generated for the purpose of availing loan and therefore, the release deed itself has no legal effect. Consequently, Ext.A2/Ext.B1 also would have no legal effect. 10. Going by the evidence, Unnikrishnan given evidence as PW1, whereas Kanakam given evidence as DW1. When a party wants to set aside a registered settlement deed, convincing and cogent evidence should be adduced to substantiate the said contention to succeed such a suit. In fact, Unnikrishnan miserably failed to adduce evidence to unsettle the legality of Ext.A1 and Ext.A2/Ext.B1 and thereby, the courts below found that Ext.A2 settlement **RSA Nos.775 OF 2022 & 408 OF 2023** **10** deed had taken effect and accordingly, Kanakam perfected title upon the plaint schedule property and the challenge against Ext.A1 and Ext.A2/Ext.B1 at the instance of Unnikrishnan could not succeed. It was also found by the courts below that Unnikrishnan is in occupation of the plaint schedule item and he has no right over the same. 11. As things stands now, there is no reason to allow the prayer in OS No.4511/2011. Whereas, in fact, Kanakam perfected title on the basis of Ext.A2/Ext.B1 settlement deed and therefore the relief of mandatory injunction is entitled by her. Thus, the trial court as well as the appellate court concurrently found so. Thus the concurrent verdicts do not suffer from any infirmities. 12. In this case, in fact, the learned counsel for Unnikrishnan failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: **RSA Nos.775 OF 2022 & 408 OF 2023** **11** _**“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.”_ 13. 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 **RSA Nos.775 OF 2022 & 408 OF 2023** **12** 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 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. 14. 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_ **RSA Nos.775 OF 2022 & 408 OF 2023** **13** _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]** ._ 15. 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._ 16. 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 **RSA Nos.775 OF 2022 & 408 OF 2023** **14** 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 the C.P.C. must be complied to admit and maintain a second appeal. **RSA Nos.775 OF 2022 & 408 OF 2023** **15** 17. In view of the above fact, no substantial question of law arises in these matters to be decided by admitting these appeals. 18. In the result, these appeals are found to be meritless and the same are dismissed, without being admitted. 19. However, considering the request of the learned legal aid counsel for Unnikrishnan, three months' time is granted to Unnikrishnan for vacating the plaint schedule property, provided Unnikrishnan/appellant shall file an affidavit before the trial court within a period of two weeks from today, undertaking to vacate the building on expiry of three months from today. If no such affidavit will be filed within two weeks, as directed, the grace period of three months granted by this Court shall not be available and the decree impugned can be put into execution without waiting for three months. **RSA Nos.775 OF 2022** **16** **& 408 OF 2023** All interlocutory orders stand vacated and all interlocutory applications pending in these regular second appeals stand dismissed. Registry is directed to forward a copy of this judgment to the court below concerned, within two weeks, for information and compliance. **Sd/-** **A. BADHARUDEEN JUDGE** nkr