Valsala v. V.G. Sasikumar, Santosh Kumar and Sajikumar

## **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. 225 OF 2023** **AGAINST THE DECREE AND JUDGMENT DATED 31.10.2019 IN OS 636/2009 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA DECREE AND JUDGMENT DATED 29.10.2022 IN AS 26/2021 OF SUB COURT, ALAPPUZHA** ## **APPELLANT/1ST APPELLANT/1ST DEFENDANT:** VALSALA AGED 71 YEARS W/O. LATE BALAN, VALSALA BHAVAN, ARYAD SOUTH VILLAGE, THATHAMPALLY P.O, ALAPPUZHA, PIN - 688013 BY ADV DOMSON J.VATTAKUZHY ## **RESPONDENTS/RESPONDENT AND APPELLANTS 2 AND 3/PLAINTIFF AND** ## **DEFENDANTS 2 AND 3:** 1 V.G SASIKUMAR, AGED 70 YEARS, S/O. GOVINDA PILLAI, SOUPARNIKA, ARYAD SOUTH VILLAGE, THATHAMPALLY P.O, ALAPPUZHA, PIN – 688013. 2 SANTHOSH KUMAR, AGED 48 YEARS S/O. LATE BALAN, VALSALA BHAVAN, ARYAD SOUTH VILLAGE, THATHAMPALLY P.O, ALAPPUZHA, PIN – 688013. 3 SAJIKUMAR, AGED 46 YEARS, S/O. LATE BALAN, VALSALA BHAVAN, ARYAD SOUTH VILLAGE, THATHAMPALLY P.O, ALAPPUZHA, PIN – 688013. BY ADVS. K.M.BIJU S.K.BRAHMANANDAN(B-245) N.D.DEEPA(K/953/2003) K.M.FATHIMA(K/003174/2022) S.K.BALACHANDRAN(K/46/1983) **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON** **22.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RSA.No.225/2023 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _R.S.A No.225 of 2023_ _================================ Dated this the 22nd day of January, 2024_ ## _**J U D G M E N T**_ Feeling aggrieved by the decree and judgment in O.S.No.636/2009 on the files of the Additional Munsiff Court, Alappuzha dated 31.10.2019 and its confirmation as per decree and judgment in A.S.No.36/2021 dated 29.10.2022 by the Sub Court, Alappuzha, the 1st defendant in the above Suit has preferred this Second Appeal under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure. The plaintiff and defendants 2 and 3 are the respondents in this case. 2. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendants’ hereafter for easy reference. 3. Heard the learned counsel for the 1st defendant/appellant on admission. RSA.No.225/2023 3 4. Perused the verdicts under challenge and the relevant documents. 5. The plaintiff filed the Suit seeking relief of declaration and recovery of item No.2 property and fixation of boundary. According to the plaintiff, the plaintiff purchased the plaint item No.1 property having an extent of 22 ½ cents from his brother as per sale deed No.4527/97 of Alappuzha S.R.O. The property of the brother of the defendant and item No.1 are lying contiguously and there is a strip of land on the northern side of the defendants' property which is used as access from the road on the western side to their remaining portion of item No.1. According to the plaintiff, there is an old boundary wall separating item No.1 and plaintiff's residential property on the north. On 17.08.2009, the defendants started construction of a compound wall encroaching into the plaint item No.1 strip of land and the same necessitated filing of the Suit. 6. The defendants filed written statement contending that the Suit is barred by limitation as the defendants constructed the slab wall separating plaint schedule property in the year 1993 and RSA.No.225/2023 4 the construction was made by the predecessor of the defendants, one Mr.Balan. 7. The court below ventured the matter. PW1 to PW3 were examined and Exts.A1 to A5 were marked on the side of the plaintiffs. Exts.B1 to B4 were marked on the side of the defendants. Exts.C1 to C2(b) were also marked as court exhibits. 8. The court below on examining the Commissioner in this case as PW1, supported by the evidence of PW3, acted upon Ext.A1 title deed of the plaintiff and found that item No.2 property is the property of the plaintiff and accordingly the plaint item No.2 property located in Ext.C1(b) plan was declared as the property of the plaintiff and boundaries in between plaint item No.1 property with that of the defendants' property was fixed as `A6A8A' as per Ext.C1(b) plan. 9. Though appeal was filed before the appellate court, the appellate court confirmed the verdict of the trial court. Even though the learned counsel for the 1st defendant/appellant submitted that no error could be pointed out in so far as fixation of boundary as `A8A6A' as per Ext.C1(b) plan, the compound wall lying therein is RSA.No.225/2023 5 ## in a dilapidated condition. 10. The learned counsel for the plaintiff' submitted that even though the plaintiff filed Suit for recovery of possession also, said relief was not granted by the trial court since it was found that `A8A6A' lying in Ext.C1(b) plan is in conformity with the existing compound wall. According to the learned counsel for the plaintiff, therefore the concurrent verdicts of the trial court and the appellate court do not require any interference. 11. On perusal of the verdicts under challenge, no infirmity could be noticed in fixing `A8A6A' lying in Ext.C1(b) as the boundary between plaint item No.1 and the defendants' property and also declaring title of the plaintiff' over item No.2 property as could be seen in Ext.C1(b). Therefore, no valid contentions is put forth by the learned counsel for the 1st defendant warranting admission of the Second Appeal by raising any substantial question of law. 12. 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 RSA.No.225/2023 6 100 of C.P.C. 13. In the instant case, the learned counsel for the appellant 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 provision of section 100.”_ 14. 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 RSA.No.225/2023 7 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. 15. 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.**_ 16. 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: RSA.No.225/2023 8 _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 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 substantial question of law of general importance. As such, second RSA.No.225/2023 9 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. 18. In view of the elaborate discussion, no substantial question of law arises in this Second Appeal to be decided by admitting the same. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All pending Interlocutory Applications stand dismissed. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_