Kerala High Court

Elizabeth Jessy vs Carmel Francy @Carmali T.J on 15 February, 2024

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
                         RSA NO. 296 OF 2023
AGAINST THE JUDGMENT AND DECREE IN A.S.NO.36/2019 OF SUB COURT,KOCHI
   AGAINST THE JUDGMENT AND DECREE IN O.S.NO.34/2014 OF ADDITIONAL
                        MUNSIFF COURT, KOCHI


APPELLANTS/APPELLANTS IN A.S./DEFENDANTS IN O.S.:

     1     ELIZABETH JESSY
           AGED 64 YEARS
           W/O LATE REMOLD, PANIKKASSERY HOUSE OCHANTHURUTHU P.O
           PUTHUVYPPE VILLAGE, PIN - 682508
     2     RIJIN
           AGED 31 YEARS
           S/O. LATE REMOLD, PANIKKASSERY HOUSE OCHANTHURUTHU P.O
           PUTHUVYPPE VILLAGE, PIN - 682508
     3     NIVIN REMOLD
           AGED 26 YEARS
           S/O. LATE REMOLD, PANIKKASSERY HOUSE OCHANTHURUTHU P.O
           PUTHUVYPPE VILLAGE, PIN - 682508
           BY ADVS.
           SAM ISAAC POTHIYIL
           S.SURAJA
           MUHAMMED SUHAIR C.A
           ABEY GEORGE
           HARISH V.S.
           RAMU SUBHASH

RESPONDENTS/RESPONDENTS/PLAINTIFFS IN O.S.:
     1     CARMEL FRANCY @CARMALI T.J
           W/O.FRANCY PETER,AGED 48 YEARS POOPADY HOUSE,
           OCHANTHURUTHU P.O PUTHUVYPPE VILLAGE, PIN - 682508
     2     JOHN.P.P @JOHN PETER
           S/O PETER,AGED 53 YEARS POOPADY HOUSE, OCHANTHURUTHU P.O
           PUTHUVYPPE VILLAGE, PIN - 682508
     3     LIVI
           W/O JOHN,AGED 46 YEARS POOPADY HOUSE, OCHANTHURUTHU P.O
 RSA NO. 296 OF 2023             2

          PUTHUVYPPE VILLAGE, PIN - 682508
    4     FRANCY PETER
          S/O PETER,AGED 46 YEARS POOPADY HOUSE, OCHANTHURUTHU
          P.O PUTHUVYPPE VILLAGE, PIN - 682508
          BY ADV P.VISHNU PRASAD



     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA NO. 296 OF 2023                3




                            JUDGMENT

Dated this the 15th day of February, 2024

This Regular Second Appeal has been filed by the

appellants against the judgment and decree in A.S.No.36/2019,

dated 28.6.2022 on the files of the Sub Court, Kochi arose out

of the judgment and decree in O.S.No.34/2014, dated 31.5.2019

on the files of the Munsiff Court, Kochi.

2. Heard the learned counsel for the appellants and the

learned counsel appearing for the respondents on admission.

3. I have perused the verdicts under challenge and also

the copies of plaint and written statement including Ext.C3

series report and survey sketch.

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

and 'defendants', for convenience.

5. In this matter, plaintiffs filed a suit seeking fixation of

boundary, setting out a pathway for the defendants and for

permanent prohibitory injunction. The specific case put up by

the plaintiffs is that, 2nd plaintiff, 4th plaintiff and 1st defendant,

are siblings and other parties are their wives and children.

According to the plaintiffs, plaint A to F and H schedule

properties belong to them and plaint I schedule is the way

available to the defendants to reach the road on western side of

the defendants' property.

6. The defendants filed written statement and raised

contention that, there is a pathway, having vehicular access

through the middle portion of plaint E schedule property from

time immemorial and the said way is having public access to

the boat jetty, where fishing boats are halted. The prayer to set

out plaint I schedule way for the use of the defendants, was

opposed and prayed for dismissal of the suit.

7. The trial court recorded evidence. PW1 to PW4 were

examined and Exts.A1 to A11 were marked on the side of the

plaintiffs. DW1 was examined and Ext.B1 was marked on the

side of the defendants. Exts.C1 to C3 also were marked.

8. On appreciation of evidence, the trial court decreed

the suit as under:

"The suit is decreed with costs as follows:

a) The boundaries of the plaint A to F, H and I schedule properties of the plaintiffs are fixed as identified in Ext.C3 report and C3 (a) survey sketch.

b) The plaint I schedule property is hereby earmarked for the defendants to connect the plaint G schedule property and the bridge on the north-western corner of the plaint E schedule property for reaching the public road on the west.

c) The defendants, their men and agents are hereby restrained by a decree of permanent prohibitory injunction from trespassing into the plaint A to F and H schedule properties, except the entry into the plaint I schedule pathway, from committing waste therein and from causing obstruction to the peaceful possession and enjoyment of the plaint A to F and H schedule properties of the plaintiffs and to the construction of compound wall or fence in the plaint A to F and H schedule properties by the plaintiffs, without obstructing or disturbing the usage of the plaint I schedule property by the defendants.

d) Ext.C3 report and C3(a) survey sketch shall form part of the decree."

9. Although appeal filed, appeal also was dismissed.

10. It is pointed out by the learned counsel for the

defendants that, even though the defendants raised a

contention in the written statement as to existence of a way

through the middle of plaint E schedule having motorable

access, as per Ext.C3 plan, plaint H schedule located is a way

in existence and where the defendants perfected right of

easement by prescription. Therefore, by setting out plaint 'I'

schedule pathway, for the use of the defendants, the right of

the defendants to use plaint 'H' schedule in no way to be

interfered and therefore, the trial court as well as the appellate

court went wrong in negating the said way.

11. Repelling this argument, the learned counsel for the

plaintiffs argued that no substantial question of law arises in

this appeal, where the trial court and the appellate court

concurrently found against the contention raised by the

defendants, while upholding the contention raised by the

plaintiffs.

12. On perusal of Ext.C3 plan, the surveyor located

properties covered by Exts.A1 to A8 sale deeds belong to the

plaintiffs and the property belong to the defendants. As per

Ext.C3, plot 'G' in the plan is the property covered by Ext.B1.

Further, plots A, B1, B2, C, D, E, F, and H, are the properties

covered by the title deed of the plaintiffs. Accordingly,

plaintiffs provided 'I' schedule way to the defendants to reach

on the western public road.

13. The learned counsel for the defendants submitted

that the defendants have right of easement by prescription

through plaint H schedule. On reading the copy of written

statement placed by the learned counsel for the defendants, no

contention seen raised insofar as plaint H schedule item is

concerned and the limited contention in the form of vague

allegations in the written statement is claim of way through the

middle of E schedule property, which, in fact, not specifically

located in Ext.C3. Thus, it appears that the defendants, who

are claiming right over plaint H schedule property in no way

pleaded any right over the same, even a whisper could be seen

in the written statement as regards to plaint H schedule, as

argued now. Therefore, claim of the plaintiffs, based on their

title deeds, where the defendants did not have any contention

as regards to plaint H schedule way, was proved and therefore,

the trial court as well as the appellate court rightly negatived

the contentions raised by the defendants. Therefore, no

substantial question of law arises to admit this appeal.

14. 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."

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 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].

17. 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.

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