Kerala High Court

Vallikkadan Ayamu Haji vs Vallikkadan Pathummakutty on 8 December, 2023

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
                           RSA NO. 616 OF 2022
   AGAINST THE JUDGMENT IN A.S.NO.105/2018 OF ADDITIONAL DISTRICT
           COURT - II, MANJERI ARISING OUT OF THE ORDER IN
    F.D.I.A.NO.305/2015 IN O.S.NO.293/2012 OF SUB COURT, MANJERI
APPELLANT/APPELLANT IN A.S.NO.105/2018/RESPONDENT NO.1 IN I.A.
NO.305/2015 IN O.S.NO.293/2012:

           VALLIKKADAN AYAMU HAJI
           AGED 74 YEARS
           S/O.KUNHEETHI,CHALIL HOUSE, CHAPPILIKUNDU, OORAKAM
           AMSOM,ORAKAM KEEZHUMURI (PO), THIRURANGADI TALUK,
           MALAPPURAM DISTRICT.
           BY ADV M.P.SREEKRISHNAN

RESPONDENTS/RESPONDENTS 1-2 & 4-15 IN A.S.NO.105/2018/PETITIONERS AND
RESPONDENTS NO.1 AND 3 TO 8 IN I.A.NO.305/2015 IN O.S.NO.293/2012:

     1     VALLIKKADAN PATHUMMAKUTTY
           AGED 76 YEARS
           W/O.KAMMUKUTTY, KALLANKUNNAN, KIZHAKKEYIL HOUSE,
           CHEENIPPADI, IRINGALLUR (PO), PARAPPUR AMSOM,
           THIRURANGADI TALUK, MALAPPURAM DISTRICT - 676 304.
     2     VALLIKKADAN IYYACHAKUTTY
           AGED 77 YEARS
           W/O.VALLIKKADAN MOOSA, MAMBEETHI, OORAKAM KEEZHUMURI
           P.O., THIRURANGADI TALUK, MALAPPURAM DISTRICT - 676 519.
     3     K.SAFIYA
           AGED 65 YEARS
           W/O.HAMZA OORPATTIL, PARAMBIL HOUSE, PALAKKAL,VELIMUKKU
           (P.O.), VELIMUKK AMSOM, THIRURANGADI TALUK - 676 317.
     4     K.ABDURAHIM
           AGED 63 YEARS
           S/O.AHAMMED KUTTY HAJI, THEKKEYIL HOUSE, CHEROOR AMSOM
           DESOM, CHERUR (P.O.), THIRURANGADI TALUK - 676 304.
     5     UMUKULSU
           AGED 62 YEARS
 RSA NO. 616 OF 2022           2

          W/O.MUHAMMED SHEIK RASHEED, ANUGRAHA HOUSE,
          NEDUMPARAMBUKUNNU (PO), VALLIPARAMBU, VIA MEDICAL
          COLLEGE, PERUVAYAL AMSOM, KOZHIKODE TALUK - 673
          008.
    6     KUNHIPATHUMMA @AVA
          AGED 57 YEARS
          W/O.U.K.SAIDALAVI, PANDIKASALA, VALIYORA AMSOM,
          KOORIYAD (PO), THIRURANGADI TALUK - 676 304.
    7     K.USMAN
          AGED 57 YEARS
          S/O.AHAMMEDUTTY HAJI, THEKKEYIL HOUSE, CHEROOR
          AMSOM, DESOM, CHERUR P.O., THIRURANGADI TALUK - 676
          304.
    8     K.ABDUSAMAD
          AGED 54 YEARS
          S/O.AHAMMEDUTTY HAJI, THEKKEYIL HOUSE, CHEROOR
          AMSOM, DESOM, CHERUR P.O., THIRURANGADI TALUK - 676
          304.
    9     JAMEELA MOHAMMED
          AGED 65 YEARS
          W/O.KANNETH MOHAMMED @ BAPUTTY, FASEELA MANZIL,
          CHERUR P.O., CHEROOR AMSOM DESOM, VIA VENGARA,
          MALAPPURAM DISTRICT - 676 304.
   10     YASER ARAFATH KANNETH
          AGED 49 YEARS
          S/O.KANNETH MOHAMMED @ BAPUTTY, FASEELA MANZIL,
          CHERUR P.O., CHEROOR AMSOM DESOM, VIA VENGARA,
          MALAPPURAM DISTRICT - 676 304.
   11     FASEELA K.
          AGED 47 YEARS
          D/O.KANNETH MOHAMMED @ BAPUTTY, FASEELA MANZIL,
          CHERUR P.O., CHEROOR AMSOM DESOM, VIA VENGARA,
          MALAPPURAM DISTRICT - 676 304.
   12     SHAMEERMON KANNETH
          AGED 44 YEARS
          S/O.KANNETH MOHAMMED @ BAPUTTY, FASEELA MANZIL,
          CHERUR P.O., CHEROOR AMSOM DESOM, VIA VENGARA,
          MALAPPURAM DISTRICT - 676 304.
   13     JASEELA NOUSHAD
          AGED 36 YEARS
          D/O.KANNETH MOHAMMED @ BAPUTTY, FASEELA MANZIL,
 RSA NO. 616 OF 2022            3

          CHERUR P.O, CHEROOR AMSOM DESOM, VIA VENGARA,
          MALAPPURAM DISTRICT - 676 304.
   14     SHABEER K.
          AGED 33 YEARS
          S/O.KANNETH MOHAMMED @ BAPUTTY, FASEELA MANZIL,
          CHERUR P.O, CHEROOR AMSOM DESOM, VIA VENGARA,
          MALAPPURAM DISTRICT - 676 304.
          R1 & R2 BY ADV MOHAMED JAMEEL P.K



     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
04.12.2023, THE COURT ON 8.12.2023 DELIVERED THE FOLLOWING:
 RSA NO. 616 OF 2022              4




                           JUDGMENT

Dated this the 8th day of December, 2023

This Regular Second Appeal arises out of final judgment

in I.A.No.305/2015 in O.S.No.293/2012 on the files of the Sub

Court, Manjeri, which was confirmed in A.S.No.105/2018 by

the learned Additional District Judge, Manjeri, as per decree

and judgment, dated 8.4.2022.

2. The appellant is the original 1st defendant and 1st

respondent in I.A.No.305/2015 (the final decree application)

in O.S.No.293/2012. Respondents are the plaintiffs and other

defendants in the suit.

3. Heard the learned counsel for the appellant as well

as the learned counsel appearing for the respondents.

4. I shall refer the parties in this appeal as 'plaintiffs'

and '1st defendant' for convenience.

5. Originally, suit was filed by Vallikkadan

Pathummakutty and Vallikkadan Iyyachakutty, as plaintiffs,

for partition of the plaint A and B schedule properties. After

trial, the trial court found that the properties were partible

and accordingly, preliminary decree of partition was passed.

6. Thereafter, the plaintiffs, as petitioners, filed

I.A.No.305/2015, to pass final decree by allotting separate

shares in terms of the preliminary decree by metes and

bounds.

7. Even though the respondents 1 to 8 appeared, they

did not oppose passing of final decree. Accordingly,

Commissioner and Surveyor were appointed and the

Commissioner filed report on 6.8.2016.

8. As on 19.10.2016, the 1st defendant filed

I.A.No.951/2016, raising objection to the Commission report

and plans with a prayer to set aside the same. The trial court

considered the above I.A. along with the final decree

application and finally passed final decree, acting on Exts.C2

and C2(a) plans form part of Ext.C1 report.

9. As far as Ext.C2(a) plan pertaining to plaint B

schedule item is concerned, the parties have no dispute at all.

However, the dispute is confined insofar as Ext.C2 plan,

pertaining to plaint A schedule property.

10. The learned counsel for the appellant/1 st defendant

submitted that, Ext.C2 plan cannot be accepted for partition

of the properties, mainly on two grounds. The first ground

according to the learned counsel is that, after partition of the

properties, as per Ext.C2, a way set apart as common towards

the property as plot No.5. It is submitted further that, plot

No.5 in Ext.C2(a) plan was set apart, on the finding of the

Commissioner that on the northern side of the plaint A

schedule property, there is a mud road and the 1 st defendant

owns the property on the northern side of the said mud road.

11. Secondly, it is argued that plot No.4 allotted to the

1st defendant, who purchased two more shares from the other

sharers is rocky land, not capable of cultivation and the prime

area, where cultivation in abundance was allotted as plot

Nos.1, 2 and 3 in favour of other sharers.

12. According to the learned counsel for the appellant,

when there is dispute with regard to the way available to a

property, which is the subject matter of final decree, the way

in dispute also should have been decided in the final decree

proceedings itself and not by a separate suit. It is argued

further that, as per the observation of the appellate court in

Paragraph No.12 of the appellate court judgment, the

appellate court observed that, the right of the parties in the

Mud Road seen and reported by the Advocate Commissioner

on the Northern side of the plaint 'A' schedule property, could

not be decided in the final decree proceedings for partition.

According to the learned counsel for the appellant, the said

finding is erroneous.

13. As regards to the first contention raised, the

learned counsel for the plaintiffs/respondents 1 and 2 would

submit that the properties on all three sides of the plaint A

schedule is the property, owned by the appellant Ayamu Haji

and also the property on the northern side of plaint A

schedule is also property owned by Ayamu Haji, where he has

been residing at the house situated therein. According to the

learned counsel, there existed a mud road towards access to

plaint A schedule, as reported by the Commissioner and the

existence of the mud road even admitted by DW1, in his chief

affidavit, filed in the final decree proceedings, where he got

examined as DW1. He also would submit that no recognized

public way is available to the plaint A schedule property.

Therefore, the objection raised by the appellant as against the

Commission report, was found against by the trial court as

well as the appellate court. He would submit that the

contention raised by the learned counsel for the appellant

that the right of way, which was reported by the

Commissioner on the northern side of the plaint A schedule

property also must be decided in the final decree stage

cannot sustain, since the same is not a matter in issue in the

final decree proceedings. Accordingly, it is submitted that

the final decree and judgment under challenge, are liable to

be confirmed and this appeal does not deserve admission.

14. While allaying the controversy in response to the

two objections specifically raised by the learned counsel for

the appellant, the first objection is with regard to the report

of the Commissioner stating that there exists a mud road on

the northern side of plaint A schedule property, though the

Commissioner did not specifically locate the said mud road.

In paragraph No.5 of the Commission report, Commissioner

reported that, there is a mud road seen on the northern side

of plaint A schedule property. In the affidavit in support of

I.A.No.951/2016, the appellant raised contention that there is

no mud road on the northern side of A schedule property and

the Commissioner reported so, so as to facilitate the plaintiffs

to claim right of way through the property of the appellant on

the northern side. It is also stated that, even though as per

Ext.C2 plan, a way as plot No.5 was provided in the plaint A

schedule property, no road in continuation of the same is

available and in order to use the same, such a way also should

have been there. Apart from the affidavit in support of

I.A.No.951/2016, the appellant filed chief affidavit and he got

examined as DW1 in the final decree proceedings. In the

chief affidavit, the version of DW1 is that, there is no way

available to plaint A schedule property and the property on

the eastern side of the A schedule property is paddy field. It

is also affirmed by DW1 that through the ridges of this paddy

field, it is possible to have access to plaint A schedule

property. It is also stated that, when the appellant was

possessing plaint A schedule property, the property of the

appellant was used as an access to plaint A schedule property,

but there is no permanent way available to plaint A schedule

property. In the report, it is also stated that, at the time when

the Commissioner inspected the property, there existed a

motorable road on the northern side.

15. As I have already pointed out, in paragraph No.5 of

the report, the Commissioner specifically stated existence of a

mud road on the northern side of plaint A schedule and at the

same time, the Commissioner stated that plaint A schedule

has no direct access to any public road otherwise. In this

context, the Commission report Ext.C1 and Ext.C2 series plan

obtained during the preliminary decree stage also assume

significance. On going through Ext.C1 report and Ext.C2

series plan, prepared during the preliminary decree stage,

the Commissioner specifically shown a way towards the

property of the appellant and towards plaint A schedule and

the same way has been reiterated in the Commission Report

and Ext.C2, in the final decree proceedings also.

16. According to the learned counsel for the appellant,

the appellant is aggrieved in the matter of lack of opportunity

for the appellant to cross examine, the Commissioner and

Surveyor to establish non-existence of mud road on the

northern side of plaint A schedule and also availability of way

on the eastern side through the ridges of the paddy field.

17. How far this contention would succeed, is the prime

question. In this matter, I.A.No.951/2016, filed by the

appellant/1st defendant with a prayer to set aside Exts.C2 and

C2(a), was dismissed by the trial court. The trial court found

that, at the time of division of the properties as plot Nos.1 to

4, as per Ext.C2(a) plan, plot No.5 is specifically provided as

way to connect the plaint schedule property from the mud

road on the northern side of the plaint A schedule property

and the trial court as well as the appellate court found that

the mud road was reported by the Commissioner in Ext.C2.

18. I have gone through Ext.C1 as well as Ext.C2 in this

case as well as Ext.C1 and Ext.C2 generated during the

preliminary decree stage, as discussed hereinabove. It could

be gathered that, as per Ext.C1 as well as Ext.C2, there is a

mud road on the northern side of plaint A schedule property.

Accordingly, the Commissioner provided plot No.5 as the way

to reach the plaint schedule property, in continuation of the

mud road. As far as right of the respondents herein in

relation to the mud road is concerned, that is not a matter in

issue in the final decree proceedings, since the said

contention not raised by the plaintiffs or by the defendants.

Therefore, the dispute raised by the appellant contending

that there was no mud road on the northern side of plaint A

schedule, cannot be sustained, since Exts.C1 and C2

categorically show existence of such a mud road. Regarding

the right of the said mud road, the same is not a subject

matter in issue in the final decree proceedings. Thus, non-

examination of the Commissioner and Surveyor is of no

serious consequences and this challenge found to be of no

avail to the appellant.

19. As far as the second challenge, pertaining to the

value of the property allotted to the appellant as plot No.5 in

Ext.C2(a) plan, it could be gathered that only vague

allegations insofar as its value raised in the affidavit in

support of I.A.No.951/2016 and in the chief affidavit filed by

the 1st defendant, who was examined as DW1. On evaluation

of the evidence, there is nothing available in evidence to hold

that the plot allotted to the 1 st defendant is one having lesser

value, in a case, where the said plot was allotted to the

appellant adjoining his properties, on the eastern side of the

plaint A schedule, in a most convenient manner. Therefore,

the second challenge also could not yield.

20. Since it is found that the properties were divided as

per metes and bounds to the extent possible, there is no error

committed by the trial court or the appellate court in granting

final decree, relying as per Ext.C2(a) plan.

21. In this case, the learned counsel for the appellant/1st

defendant failed to raise 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."

22. 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 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.

23. 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].

24. 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.

25. 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