Kerala High Court
Ahammed Khan vs S.Yousuf on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RSA NO. 202 OF 2015
AGAINST THE DECREE & JUDGMENT DATED 20.02.2007 IN OS 288/2000 OF
MUNSIFF COURT, MANJERI
DECREE & JUDGMENT DATED 31.10.2014 IN AS 30/2007 OF DISTRICT COURT,
MANJERI
APPELLANT/SUPPLEMENTAL 4TH RESPONDENT/THIRD PARTY:
AHAMMED KHAN, AGED 65 YEARS,
S/O. MOHAMMED ABDUL KADER, KUTTIVILAHAM VEEDU,
KAMALESWARAM, MUTTATHARA VILLAGE,
THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM
DISTRICT.
BY ADVS.
SRI.A.CHANDRA BABU
T.KRISHNANUNNI (SR.)(K/280/1973)
RESPONDENTS/1st RESPONDENT, 2nd APPELLANT, SUPPLEMENTAL
APPELLANTS 3 TO 10 (R3 TO R10 IN RSA.202/2015 - LEGAL HEIRS
OF 1ST APPELLANT IN AS.30/2007), 3RD RESPONDENT, LEGAL HEIRS
OF 2ND RESPONDENT IN AS.30/2007 (R12 TO R14 IN
RSA.202/2015)/PLAINTIFF, 2ND DEFENDANT, LEGAL HEIRS OF 1ST
DEFENDANT IN OS.288/2000 (R3 TO R10 IN RSA.202/2015),
SUPPLEMENTAL 4TH DEFENDANT, LEGAL HEIRS OF 3RD DEFENDANT IN
O.S.NO.288/2000 (R12 TO R14 IN RSA.202/2015:
1 S.YOUSUF, AGED 56 YEARS
S/O. SHAHUL HAMEED, 20/108, MOSQUE ROAD, COLACHEL
P.O., KANYAKUMARI DISTRICT, TAMIL NADU.
2 SHAHUL HAMEED,
AGED 54 YEARS
S/O. HUSSAIN, BOMBAY GENERAL STORES, POOJAPPURA
P.O., THIRUVANANTHAPURAM DISTRICT.
3 KHADEEJA BEEVI, AGED 55 YEARS
W/O. LATE MOHAMMED HALITH, RESIDING AT S.M MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
RSA.No.202/2015 2
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
4 SHAHUL HAMEED, AGED 40 YEARS
S/O. LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
5 AYSHABEEVI, AGED 38 YEARS
D/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
6 EMADDHUDHEEN,
AGED 36 YEARS,
S/O. LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
7 BETHERNISHA
AGED 34 YEARS
D/O. LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
8 MARJANAFATHIMA
AGED 32 YEARS
D/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
9 YADUTHMILLATH
AGED 24 YEARS
S/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
10 NABEELA
AGED 21 YEARS
D/O.LATE MOHAMMED HALITH, RESIDING AT S.M.MANZIL,
THEKKAKULAM LANE, OPPOSITE SPINNING MILL,
BALARAMAPURAM P.O., KOTTAKKAL VILLAGE,
NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
11 M.NARAYANANKUTTY
AGED 65 YEARS
S/O. MATTADADAKSHAYANIAMMA, KAVANOORAMSOM, IRIVETTY
DESOM, ERNAKULAM TALUK, MALAPPURAM DISTRICT.
12 SREE DEVI
AGED 62 YEARS
W/O. LATE K.V.BALASANKARAN NAIR, RESIDING AT MANJRI
RSA.No.202/2015 3
AMSOM, ARUKIZHAYA DESOM, ERNAD TALUK, MALAPPURAM
DISTRICT.
13 UDHAYA KUMAR
AGED 34 YEARS
S/O. LATE K.V.BALASANKARAN NAIR, RESIDING AT MANJRI
AMSOM, ARUKIZHAYA DESOM, ERNAD TALUK, MALAPPURAM
DISTRICT.
14 BINDHU
AGED 37 YEARS
D/O. LATE K.V.BALASANKARAN NAIR, RESIDING AT MANJRI
AMSOM, ARUKIZHAYA DESOM, ERNAD TALUK, MALAPPURAM
DISTRICT.
BY ADVS.
FOR R1 SRI.G.S.REGHUNATH
FOR R2-R10 SRI SAJU J PANICKER
FOR R2-R10 KURIAN K JOSE(K/001510/2019)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 25.01.2024, THE COURT ON 06.02.2024 DELIVERED THE
FOLLOWING:
RSA.No.202/2015 4
A. BADHARUDEEN, J.
================================
R.S.A No.202 of 2015
================================
Dated this the 6th day of February, 2024
JUDGMENT
The appellant has preferred this Second Appeal under Order
XLII Rule 1 read with Section 100 of the Code of Civil Procedure.
This appeal arises out of the decree and judgment in
O.S.No.288/2000 on the files of the Munsiff Court, Manjeri dated
20.02.2007, which were confirmed by the District Judge, Manjeri, as
per decree and judgment in A.S.No.30/2007 dated 31.10.2014. The
appellant herein is one Ahammed Khan and the respondents are the
plaintiff and other parties.
2. Heard the learned counsel for the appellant and the
learned counsel appearing for the 1 st respondent in detail.
Perused the verdicts under challenge and the lower court records
made available.
3. I shall refer the parties in this appeal as to
their status before the trial court, as `plaintiff' and `defendants'
hereafter for easy reference.
4. S.Yousuf, S/o.Shahul Hameed, the plaintiff, had
filed the present Suit seeking partition of the plaint schedule
property. According to the plaintiff, the plaint schedule property
was jointly purchased as per assignment deed No.3625/1995 of
S.R.O, Manjeri, in the name of the plaintiff by name Yousuf,
P.Mohammed Halith and Shahul Hameed, defendants 1 and 2.
While so, by impersonating the plaintiff, defendants 1 and 2
executed sale deed in favour of another man, but the plaintiff is not
the executant of the said sale deed and thus the same would not bind
the plaintiff. Therefore, the plaintiff sought his 1/3 share in the plaint
schedule property to be partitioned.
5. Defendants 1 and 2 filed written statements
disputing the identity of the plaintiff and asserted that the person
named as `Yousuf' in the sale deed No.3625/1995 is another person
and he had transferred the property. Therefore, the plaintiff would
not get share as contended.
6. The trial court recorded evidence. PW1 was
examined and Exts.A1 to A10 were marked on the side of the
plaintiff. Exts.B1 and B2 were marked on the side of the defendants.
Ext.C1 was marked as court exhibit.
7. On appreciation of the evidence, the trial court
found that the plaintiff would get 1/3 share out of the plaint schedule
property. Accordingly, preliminary decree of partition was passed.
Even though the verdict of the Munsiff Court was challenged before
the District Court, Manjeri, the appeal also was dismissed.
8. The learned Senior Counsel appearing for
Ahammed Khan, for and on behalf of the defendants, submitted that
the defendants emphatically denied the fact that the name Yousuf
mentioned in Ext.A1 assignment deed No.3625/1995, S/o.Shahul
Hameed, TC 17/1888, Poojappura Ward, Aramada Village,
Thiruvananthapuram Taluk, is not the plaintiff. It is submitted
further that the person named as `Yousuf' in Ext.A1 executed Ext.B1
assignment deed and transferred his right. Therefore, the claim of
1/3 share at the instance of the plaintiff herein would not succeed
and the trial court as well as the appellate court wrongly appreciated
the evidence to find the plaintiff as the person mentioned in Ext.A1.
The learned Senior Counsel also submitted that the trial court as well
as the appellate court given much reliance on Ext.C1 commission
report and the evidence of the commissioner to hold the identity of
the plaintiff as the person named in Ext.A1. It is pointed out by the
learned Senior Counsel further that Commissioner is not empowered
to hold an enquiry as to the identity of a person and in that view of
the matter, Ext.C1 is inadmissible in evidence. It is also submitted
that apart from Ext.C1, no positive evidence forthcoming to hold that
plaintiff is the person named as Yousuf in Ext.A1. Accordingly, the
learned Senior Counsel pressed for admission of this matter raising
substantial questions of law.
9. Refuting the contentions raised by the learned
Senior Counsel for the appellant for and on behalf of the defendants,
it is submitted by the learned counsel for the plaintiff that even
though some observations in Ext.C1 also taken note of by the trial
court as well as the appellate court while deciding the identity of the
plaintiff as the person who purchased the property along with the
defendants, as per Ext.A1, thrust was given to the evidence of DW1
and Ext.A7 by the courts below to hold that plaintiff is the person
named in Ext.A1 as `Yousuf'. along with Ext.A7 to hold so.
Therefore, his claim for partition was rightly allowed by the trial
court and confirmed by the appellate court and the said concurrent
verdicts do not require any interference. Further no substantial
question of law also arises for consideration, to admit this Second
Appeal.
10. To be on the crux of this matter, the dispute is
centred on a simple question as to whether Yousuf, S/o.Shahul
Hameed, named in Ext.A1 assignment deed is the plaintiff by name
Yousuf herein, so as to grant 1/3 right over the plaint schedule
property covered by Ext.A1. It is relevant to note that the specific
case of the plaintiff is that without the knowledge and consent of the
plaintiff, Ext.B1 was created by impersonating him and the same has
no legal effect. In the instant case, a very pertinent aspect to be
noted is that PW1, the plaintiff, given evidence that the plaint
schedule property was purchased while the plaintiff was doing
business along with defendants 1 and 2 and the property was
purchased at the time when the plaintiff resided along with the 1 st
defendant in House No.TC 17/1888-10 named as Ram Nivas in
Poojappura. DW1 examined in this case is the 2 nd defendant Shahul
Hameed. He filed a chief affidavit and deposed in tune with the
contention in the written statements. During cross examination,
DW1 admitted Ext.A7 document No.2842/1995, whereby one
Khadeeja Beevi, W/o.Khalid, Fathima Beevi, W/o.Yousuf residing
in T.C. 17/1888 and Ummusalma Beevi, W/o.Shahul Hameed
purchased property. DW1 admitted that in Ext.A7, the second party
Fathima Beevi is none other than the wife of Yousuf, who is the
plaintiff herein. Thus the admitted case of DW1 is that as per
Ext.A7 executed on 30.08.1995, property was purchased in the joint
names of the wives of the plaintiff and defendants. In fact, as per
Ext.A7, property was purchased in the names of the wives of the
plaintiff and the defendants on 30.08.1995 and 15 days before the
plaint schedule property was purchased in the joint names of the
plaintiff and defendants, as per Ext.A1. During re-examination,
DW1 admitted that the address of the wife of Yousuf is similar,
ie.TC 17/18888, as shown in Ext.A1. Thus without much ado, it is
established from the evidence given by DW1 that the address of the
wife of the plaintiff shown in Ext.A7 is similar to the address of the
plaintiff shown in Ext.A1. It is true that the courts below given
reliance on the evidence of the Commissioner and his report also to
hold that Yousuf, who purchased the property as per Ext.A1, is the
plaintiff.
11. That apart, the evidence of DW2, who alleged to
have introduced the person by name Yousuf while executing Ext.B1
would show that he is not in a position to tender the whereabouts and
details of the person by name Yousuf, who executed Ext.B1. Thus
the evidence available would go to show that defendants 1 and 2
impersonated the plaintiff to execute Ext.B1 and the person in
Ext.A1 is none other than the plaintiff herein. If so, the trial court as
well as the appellate court rightly found that the plaintiff is entitled
to get 1/3 share in the plaint schedule property on the strength of
Ext.A1.
12. In fact no substantial question of law raised by the
learned counsel for the appellant to admit and maintain this Second
Appeal.
13. 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
100 of C.P.C.
14. In the instant case, the learned counsel for the
appellant 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
defendant to urge any other ground in the appeal without the leave of
the Court, given in accordance with the provision of section 100."
15. 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.
16. 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.
17. 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.
18. 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 to admit and maintain a second appeal.
19. 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 with cost of the plaintiff
throughout the proceedings.
All pending Interlocutory Applications stand dismissed.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
