Kerala High Court
Noony Joseph (Died) Shanty Noony vs Noby Thomas Joseph on 1 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
RSA NO. 18 OF 2024
AGAINST THE JUDGMENT AND DECREE IN A.S.NO.155/2018 OF III
ADDITIONAL DISTRICT COURT, THRISSUR AROSE OUT OF THE JUDGMENT
AND DECREE IN O.S.NO.3873/2010 OF II ADDITIONAL MUNSIFF
COURT,THRISSUR
APPELLANTS/ADDL.APPELLANTS 2 TO 5/DEFENDANTS:
1 NOONY JOSEPH (DIED) SHANTY NOONY
AGED 52 YEARS
W/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
2 JOSEPH NOONY
AGED 31 YEARS
S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
3 LILLY NOONY
AGED 27 YEARS
D/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 68003
4 FRANCIS NOONY
AGED 22 YEARS
S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
BY ADVS.
MURALIKRISHNAN C
ABRAHAM GEORGE JACOB(K/003159/1999)
P.USHAKUMARI(K/000806/1998)
P.I.RAHEENA(K/283/2015)
SHAHNA(K/001380/2023)
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 NOBY THOMAS JOSEPH
AGED 59 YEARS
S/O LATE T.A. JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
2
2 REENA MANI
AGED 58 YEARS
W/O NOBY THOMAS JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
01.02.2024, ALONG WITH RSA NO. 26 OF 2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945
RSA NO. 26 OF 2024
AGAINST THE JUDGMENT AND DECREE IN A.S.NO.7/2019 OF III
ADDITIONAL DISTRICT COURT, THRISSUR AROSE OUT OF THE JUDGMENT AND
DECREE IN O.S.NO.1126/2014 OF II ADDITIONAL MUNSIFF
COURT,THRISSUR
APPELLANTS/ADDL.APPELLANTS 2 TO 5/PLAINTIFF:
1 SHANTY NOONY @ SHARI FRANCIS
AGED 51 YEARS
W/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
2 JOSEPH NOONY
AGED 30 YEARS
S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
3 LILLY NOONY
AGED 30 YEARS
D/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
4 FRANCIS NOONY
AGED 21 YEARS
S/O. LATE NOONY JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
BY ADVS.
MURALIKRISHNAN C
ABRAHAM GEORGE JACOB(K/003159/1999)
P.USHAKUMARI(K/000806/1998)
P.I.RAHEENA(K/283/2015)
SHAHNA(K/001380/2023)
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
4
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 NIMMY JOSEPH
AGED 63 YEARS
W/O. LATE DR. K.C. JOSEPH, CONVENT ROAD, CHALAKUDY,
THRISSUR, PIN - 680307
2 NANCY XAVIER SEBASTIAN
AGED 55 YEARS
W/O. XAVIER SEBASTIAN, 6106, BALSAM DRIVE, MILFOR,
OHAIO, U.S.A., PIN - 32187
3 DR. NICY JOSEPH
AGED 58 YEARS
W/O. ROY ABRAHAM, 1110 SOUTH, 112TH PLAZA, OMALA,
BEBRASKA, U.S.A., PIN - 32187
4 NOBY THOMAS JOSEPH
AGED 59 YEARS
S/O LATE T.A. JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
5 REENA MANI
AGED 58 YEARS
W/O NOBY THOMAS JOSEPH, THOPPIL HOUSE, PUTHURKKARA,
AYYANTHOLE P.O., THRISSUR DISTRICT, PIN - 680003
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
01.02.2024, ALONG WITH RSA NO.18 OF 2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
5
COMMON JUDGMENT
Dated this the 1st day of February, 2024
R.S.A.No.18/2024 has been filed, challenging the verdict in
A.S.No.155/2018 on the files of the Additional District Court-III,
Thrissur, arising out of O.S.No.3873/2010 on the files of the
Additional Munsiff Court-II, Thrissur. R.S.A.No.26/2024 has been
filed, challenging A.S.No.7/2019 on the files of the Additional
District Court-III, Thrissur arising out of O.S.No.1126/2014 on
the files of the Additional Munsiff Court-II, Thrissur.
2. Heard the learned counsel for the appellants, on
admission.
3. The appellants in both cases are the defendants in
O.S.No.3873/2010. O.S.No.3873/2010 is one filed by Noby
Thomas Joseph and Reena Mani, seeking relief of mandatory
injunction, directing the defendants Shanty Noony and others,
who have been occupying the plaint schedule building, to vacate
the same. According to Noby Thomas Joseph and Reena Mani,
the plaint schedule property, originally owned by the mother of
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
Noby Thomas Joseph, was transferred in the name of Noby
Thomas Joseph and Reena Mani, as per settlement deed
No.1763/2002 and sale deed No.1765/2010.
4. Noony Joseph, husband of the 1st appellant, is the
brother of Noby Thomas Joseph and he resisted the suit and
sought the relief of declaration of document Nos.1763/2002 and
1765/2010, as null and void and his contention was that, the
mother had no absolute right to transfer the properties covered
by the documents, since the mother purchased the property by
using the fund of the property sold by the father.
5. The trial court jointly tried both matters, treating
O.S.No.3873/2010 as the main case. PW1 to PW4 were examined
and Exts.A1 to A16 were marked on the side of the plaintiffs.
DW1 was examined and Exts.B1 to B14 were marked on the side
of the defendants. Finally, the trial court dismissed
O.S.No.1126/2014 and decreed O.S.No.3873/2010, directing the
defendants in O.S.No.3873/2010 to vacate from plaint A schedule
property and also directed to pay an amount of Rs.3,000/- per
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
month from 1.12.2010 towards unauthorized use and occupation.
6. Though the common judgment and decrees rendered
by the trial court, were assailed before the appellate court, the
appellate court also concurred the finding of the trial court.
7. At the time of admission, the learned counsel for
appellants vehemently reiterated the arguments, to upset
genuineness of the title deed of Noby Thomas Joseph and Reena
Mani. However, the learned counsel failed to substantiate
purchase of the plaint schedule property by the mother, using the
fund of the father, in any manner, for want of evidence.
8. On perusal of the verdicts under challenge, the courts
below addressed the contention raised by Noony Joseph and
others to unsettle Ext.B3 settlement deed No.1763/2002 Ext.B5
sale deed No.1765/2010 and for want of evidence, the said
contention was negatived, while holding that, Noby Thomas
Joseph and Reena Mani perfected title over the plaint schedule
property on the strength of Exts.B3 and B5 and the appellants
herein, being persons in occupation of the building, were
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
directed to vacate the same. On perusal of the verdicts, nothing
available to find fault with the finding of the trial court and the
appellate court.
9. In this case, in fact, the learned counsel for the
appellants 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."
10. 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
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
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.
11. 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:
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
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].
12. 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.
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
13. 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 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
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
to admit and maintain a second appeal.
14. In view of the above fact, no substantial question of law
arises in this matter to be decided by admitting this appeal.
15. In the result, this Regular Second Appeal is found to be
meritless and the same is dismissed without being admitted. All
interlocutory applications pending in this Regular Second Appeal,
stand dismissed.
16. The learned counsel for the appellants prayed for grant
of one year period to the appellants to vacate the plaint schedule
building. Even though grant of time in the absence of the other
side at the time of admission of second appeal, is a matter which
would require caution, taking into consideration of the fact that
the appellants have been residing in the plaint schedule building,
I am inclined to grant six months' time, provided the appellants
shall deposit the entire arrears towards unauthorized use and
occupation granted by the trial court and confirmed by the
appellate court, within two weeks from today. The appellants
also shall file an affidavit before the trial court, within a period of
RSA NO. 18 OF 2024 &
RSA NO. 26 OF 2024
two weeks from today, undertaking to vacate the building on
expiry of six months from today, on deposit of the entire arrears
for use and occupation. If no deposit will be effected and no
affidavit will be filed within two weeks, as directed, the grace
period of six months granted by this Court shall not be available
and the decree impugned can be put into execution without
waiting for six months.
17. It is made clear that the appellants shall continue to
pay fee for use and occupation on completion of every month
during the grace period, without fail, to enjoy the grace period of
six months, failure to do so, which results in cessation of the
grace period and in that event also, execution of the decree shall
go, forthwith.
Registry shall inform this matter to the trial court as well as
the appellate court, forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
Bb
