Vasu s/o Kannan Mannadiar v. Sankaran s/o Sanku Mannadiar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** **RSA NO. 263 OF 2017** **AGAINST THE JUDGMENT AND DECREE DATED 30.08.2016 PASSED IN A.S.NO.124/2014 AND THE CROSS OBJECTION FILED THEREIN ON THE FILE OF THE FIRST ADDITIONAL DISTRICT COURT, PALAKKAD AND THE JUDGMENT AND DECREE DATED 31.03.2014 PASSED IN O.S.NO.483/2010 ON THE FILE OF MUNSIFF'S COURT, CHITTUR** ## **APPELLANT/APPELLANT/DEFENDANT:** **VASU S/O.KANNAN MANNADIAR, AGED 47 YEARS, ANIYAPPATH HOUSE, KARIPPODE THARA, KARIPPODE POST, KODUVAYUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **1 SANKARAN S/O SANKU MANNADIAR, AGED 58 YEARS, KARIPPODE THARA, KARIPPODE POST, KODUVAYUR VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT, PIN - 678101. BY ADVS. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON** **27.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A. No. 263 of 2017 2 ## **JUDGMENT** ## **Dated this the 27[th] day of September, 2023** This regular second appeal has been filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure challenging the final decree and judgment in A.S. No.124/2014 and cross objection therein dated 30.08.2016, on the files of the Court of the First Additional District of Palakkad arising from final decree and judgment dated 31.03.2014 in O.S. No.483 of 2010 on the files of the Munsiff Court, Chittur. 2. The appellant herein is the defendant in O.S. No.483 of 2010 and the respondent herein is the plaintiff. 3. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent on admission. 4. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court. R.S.A. No. 263 of 2017 3 5. Precisely the case put up by the plaintiff before the trial court was that he being the owner of A and B Schedule properties obtained, as per sale deed Nos. 1463/1992 and 174/1998 of S.R.O., Koduvayur has right of easement by prescription over C-schedule way, available through the property of the defendant. The specific case was that, prior to purchase of the property by the plaintiff the property was held by one Madhavan and Velappan, who are siblings. Accordingly, the plaintiff raised a contention that the plaintiff in continuation of his prior owners had been using 'C-schedule' way for a period of 60 years, without interruption, as of right and thereby the plaintiff perfected right of easement by prescription over C-schedule way. 6. The defendant refuted this contention and contended _inter alia_ that Plaint C-schedule way over which the right of easement by prescription was asserted is the property of the defendant forming part of a pond and the available width of the pathway is only 3 feet. The ridge of the pond is having an average width of 1 meter and the R.S.A. No. 263 of 2017 4 same is the pathway for the purpose of the defendant alone and C-schedule pathway is one meant for use of the defendant for the purpose of agriculture. The right claimed by the plaintiff over C-schedule way was denied by the defendant. 7. The trial court recorded evidence confining the same to that of PWs 1 to 4 and Exts.A1 to A4 on the side of the plaintiff and DWs 1 to 3 and Ext.B1 on the side of the defendant. Exts.C1, C1(a) and C2 were also marked as Court's exhibits. The trial court raised issues as to the right claimed over C-schedule way available through B- Schedule property belonged to the defendant and found that the right was established and accordingly the suit decreed as under: _In the result, suit is decreed as follows:-_ - _(a) Defendant and his men are restrained by means of permanent prohibitory injunction from causing obstruction to the plaintiff's traffic to the plaint B-schedule property through the C-schedule cart-track and also from causing alteration to the C-schedule property._ - _(b) Plaintiff is entitled to the costs of the suit._ - _(c) Ext.C1(a) plan is do form part of the_ R.S.A. No. 263 of 2017 5 ## _decree._ 8. The plaintiff challenged the decree and judgment before the Appellate Court by filing A.S. No.124/2014. In response to the appeal, the plaintiff filed cross-objection to allow use of C-schedule way in relation to A-schedule property also, since the said relief was denied by the trial court. While disposing the appeal and cross-objection, the Appellate Court allowed the cross-objection and dismissed the appeal as under: _“Resultantly, the appeal stands dismissed with costs and cross-objection is allowed granting a decree of permanent prohibitory injunction restraining the defendant from causing obstruction to the plaintiff's user of plaint C-schedule pathway for the beneficial enjoyment of plaint A-schedule property for vehicular traffic as well.”_ 9. The learned counsel for the appellant/defendant argued that in order to establish right of easement by prescription, the essential ingredients mandated under Section 15 of the Easement Act, 1882 should have been R.S.A. No. 263 of 2017 6 pleaded and proved and the said legal position is no more _res-integra_ . In this connection the learned counsel placed a decision of this Court reported in _**[2017 KHC 876 : 2017 (4) KLJ 700] Kamala Devi Amma and Others v. Rajan and Another**_ . Paragraph No.30 of the said decision has been given emphasis to support his contention and the observation of this Court in paragraph No. 30 is as under: _“30. Further in the same decision the ingredients to be proved under S.15 of the Easement Act to claim easement by prescription were also discussed which reads as follows: The following conditions should exist before an easement can become absolute by prescription. (1) There must be a pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of 20 years and (7) the enjoyment for 20 years must have been without interruption. To establish the claim under S.15 of the Act, continuous user for 20 years as of right_ R.S.A. No. 263 of 2017 7 _to do the act complained of in assertion of a title, peaceably and openly must be made out. The user or enjoyment of an alleged right must be shown to have been "as of right", the user as of right, having been enjoyed nec vi nec clam, nec precario (neither as the result of force, secrecy, or evasion) nor as dependent upon the consent of the owner of the servient tenements. Consent or acquiescence on the part of the servient owner lies at the root of prescription and a grant cannot be presumed from long use without his having had knowledge or at least the means of knowledge. He cannot be said to acquiesce in an act enforced by mere violence, or in an act which he has no knowledge actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes, or in return for recurrent consideration. In substance, it means that the enjoyment should be without violence, without stealth and without permission. The importance is that the user must be peaceable, open and non – permissive.”_ 10. In fact, the legal position is not in dispute. According to the learned counsel for the R.S.A. No. 263 of 2017 8 appellant/defendant, C-schedule way as claimed by the plaintiff and identified by the Commissioner is a way having a width of 3.80 meters and at certain points the same is 4 meters. However, the road connecting the said way is having only a width of 5 feet as admitted by PW1. Therefore, the case put up by the plaintiff by asserting right of easement by prescription over the entire area of C-schedule is neither pleaded nor proved and the Courts below went wrong in granting decree. 11. Whereas, the learned counsel appearing for the respondent/plaintiff submitted that insofar as the ingredients under Section 15 of the Easement Act, 1882 is concerned, in paragraph No.2 of the plaint there is specific pleadings in this regard. He also pointed out that PW1 supported use of C-schedule way as contended. According to him, PW2, who is the prior owner of the property starting from 1969, as per the release deed executed by his father in favour of PW2, as could be read out from the narration in Ext.A2-sale deed, also supported use of C-schedule way without ambiguity. That apart, the Commissioner well R.S.A. No. 263 of 2017 9 identified the C-schedule way in tune with the evidence given by PW1 and PW2 and the Appellate Court rightly given decree in favour of the plaintiff and the said decree and judgment do not require any interference. He also submitted that the way in continuation of C-schedule is also one capable of carrying vehicles. 12. In this matter, on perusal of Ext.A2 the document whereby the plaintiff obtained B-schedule property, it has been stated that Madhavan, who is the son of Arumuga Mannadiar originally obtained the property in the year 1969 as per the release deed executed by his father Arumuga Mannadiar and by court sale, Murugan got title over the same. Subsequently, as per Ext.A2, the plaintiff obtained the same from Murugan and the prior document of Ext.A2 prior to court sale is Release deed No.18/1969. The evidence of PW2 is in support of existence and use of C-schedule way as contended by the plaintiff is not shaken during cross-examination. Similar is the position with regard to the evidence of PW1. Similarly as rightly pointed out by the learned counsel for the plaintiff, in paragraph No.2 of R.S.A. No. 263 of 2017 10 the plaint, specific pleadings to assert right of easement by prescription over C-schedule way could be gathered. 13. In fact, the Courts below concurrently found use of C-schedule way by the plaintiff in continuation of his predecessors in tune with mandate under Section 15 of the Easement Act, 1882 and thereby granted permanent prohibitory injunction upholding the right of easement by prescription claimed by the plaintiff over the same. In such a case, the width of the way in continuation of C-schedule is of no much significance, though the same according to PW1 is 5 feet capable of using C-schedule as contended. 14. Even though the learned counsel for the appellant/defendant read out the deposition of PW1 and PW2 and attempted to get this appeal admitted on the submission that there is substantial question of law involved, on perusal of the available materials, this Court is of the view that no substantial question of law is involved in this matter to admit and maintain this regular second appeal. 15. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting R.S.A. No. 263 of 2017 11 admission of the 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.”_ 16. 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 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) R.S.A. No. 263 of 2017 12 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: Provides 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. 17. 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, 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**_ R.S.A. No. 263 of 2017 13 _**Sopan Gujar, [(1999) 3 SCC 722]** , the Apex Court held that:_ _"After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence"_ _"It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals_ R.S.A. No. 263 of 2017 14 _without adhering to the procedure prescribed under S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact."_ _"If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of_ R.S.A. No. 263 of 2017 15 _the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal."_ _When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S. 100 of the CPC._ R.S.A. No. 263 of 2017 16 ## 18. 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 substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court. We may only refer to_ _**Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) wherein this Court observed as follows:_ _“12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “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_ R.S.A. No. 263 of 2017 17 _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._ 19. 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 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 R.S.A. No. 263 of 2017 18 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. 20. In the instant case, it appears that the decree and judgments entered into by the trial court as well as the Appellate Court based on the facts and evidence are found to be in order. Therefore, the same does not require any interference at the hands of this Court. 21. In this matter, on evaluation of the materials, I have already discussed, no substantial question of law arises for consideration so as to admit this second appeal. It is held further 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 R.S.A. No. 263 of 2017 19 formulated to adjudicate in this regular second appeal. Accordingly, the regular second appeal stands dismissed, without being admitted. **Sd/-** **A. BADHARUDEEN JUDGE** SK