Geetha vs G.Darmapalan

A. Badharudeen, J

These regular second appeals have been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and common judgment in A.S. Nos.87, 88 and 89 of 2019 dated 31.07.2023 on the files of the Sub Court, Mavelikara arose from decree and common judgment in O.S. Nos.34, 35 and 38 of 1988 dated 31.08.2018 on the files of the Munsiff Court, Kayamkulam.

Heard the learned counsel for the appellants by name ‘Geetha and others’ and also the respondents ‘G.Darmapalan and others’ who filed caveat petitions in these matters.

O.S. Nos.34 of 1988 was filed by Kesavanchannar Gopalan Channar, during the pendency of the suit he died and additional plaintiffs 2 to 6 impleaded as his legal representatives. Subsequently, additional plaintiffs 7 to 11 were also impleaded. O.S. No.35 of 1988 was the suit filed by Narayanan Channar and O.S. No.38 of 1988 was filed by Gopalan Channar. The prayer in the suits in precise form is to declare title of the plaintiffs over the plaint schedule property having an extent of 42 cents (18+14+10).

The sum and substance of the contentions raised by the plaintiffs before the trial court is that Sri.Kesavanchannar Gopalan Channar obtained 18 cents of property as per Ext.A1 purchase certificate issued from the Muthukulam Land Tribunal in O.A. No.614/1975. Sri. Narayanan Channar obtained 14 cents of property as per Ext.A3 purchase certificate issued from Haripad Land Tribunal in O.A. No.29/1977. Sri.Gopalan Channar purchased 10 cents of property as per Sale Deed No.2910/1983 belonged to Smt.Radhamani as per Ext.A10 purchase certificate issued from the Haripad Land Tribunal in O.A. No.29/1977. At the same time, they conceded that as per Ext.B1 purchase certificate, Kesavanchannar Raghavan Channar, 1st defendant in O.S. Nos.34 of 1988 obtained patta in respect of 42 cents adjoining to the plaint schedule property.

It is on this basis, the above suits for declaration and recovery of possession were filed.

The written statement filed by the 1st defendant precisely would go to show that he claims possession over the entire plaint schedule property and he would contend that Exts.A1, A3 and A10 purchase certificates are the outcome of fraud. Therefore, at one end, he would submit that, he has been continuing possession as a cultivating tenant and at the same time he would contend that, he has perfected title by adverse possession over the plaint schedule property. Thus, it appears that the contentions in the written statement are mutually destructive, since claim for adverse possession is not seen taken as an alternative plea.

The trial court considered the rival contentions after raising necessary issues. PWs1 to 6 examined and Exts.A1 to A13 marked on the side of the plaintiffs. DWs 1 to 5 examined and Exts.B1 to B11 marked on the side of the defendants. Exts.C1 and C1(a) were marked as Court exhibits. Exts.X1 to X4 were marked as other exhibits.

After hearing both sides and on appreciation of evidence, the trial court decreed the suits as under:

In the result, O.S.Nos. 34/88, 35/88 and 38/88 are decreed partly:-

(a) declaring the title of the plaintiffs in O.S.No. 34/'88 over the plaint schedule properties therein shown as 'FKZYJF' and 'NOPQGRSB1 N' in Ext. C1(a) plan and allowing them to recover possession of the same from additional defendant Nos 3 to 6, 9 and 10 in the said case through the process of the court,

(b) declaring the title of the plaintiff in O.S.No. 35/'88 over the plaint schedule property therein shown as 'KLMNB1A1ZK' in Ext. C1

(a) plan and allowing him to recover possession of the same from additional defendant Nos. 2 to 5, 8 and 9 in the said case through the process of the court,

(c) declaring the title of the plaintiff in O.S.No. 38/'88 over the plaint schedule property therein shown as 'WXYZA1W' in Ext. C1 (a) plan and allowing him to recover possession of the same from additional defendant Nos. 2 to 5, 8 and 9 in the said case through the process of the court,

(d) restraining the said defendants in the respective suits by a permanent prohibitory injunction from trespassing into the plaint schedule properties in all the three cases shown as 'FKZYJF', 'NOPQGRSB1N', 'KLMNB1A1ZK' and 'WXYZA1W' in Ext. CI (a) plan and from committing mischief therein; and

(e) allowing the plaintiffs in the respective suits to realise the costs of contesting the suit from additional defendant Nos. 3 to 6 in O.S.No. 34/'88, who are additional defendant Nos. 2 to 5 in O.S.Nos. 35/'88 and 38/'88.

Ext. C1 (a) plan shall form part of the decree.

Though, separate appeals had been filed challenging the said verdict, the learned Appellate Judge, by common judgment in A.S. Nos.87, 88 and 89 of 2019, dismissed the appeal suits confirming the common verdict rendered by the trial court. Aggrieved by the concurrent verdicts, the appellants are before this Court.

It is relevant to note that, in the earlier round of litigation, in all these suits, common verdict was passed by the learned Munsiff. The same was challenged in appeal before the Appellate Court and thereafter the matter went upto this Court by way of second appeal, S.A. No.278/1995 and this Court remanded back the matter to the trial court. Thus, this is the second round of litigation in between the parties before this Court and the subject matter of dispute, in fact, is confined to the legality of Exts.A1, A3 and A10 purchase certificates, whereby the plaintiffs’ assert title over the plaint schedule properties, where the defendants assert title and possession, at the same time, plea of adverse possession.

The learned counsel for the appellants submitted that Exts.A1, A3 and A10 are generated by fraud and therefore the same would not confer title upon the plaintiffs and accordingly the defendants could continue their possession and the verdict of the trial court as confirmed by the Appellate Court is illegal.

Whereas the learned counsel appearing for the respondents would submit that, in paragraph No.22 of the trial court judgment, the learned Munsiff briefly described the contentions in between the parties and thereafter found that the original defendant obtained title to an extent of 42 cents only as per Ext.B1. Whereas the plaintiffs obtained title to their respective property on the basis of Exts.A1, A3 and A10 purchase certificates.

It is seen from Ext.A3 purchase certificate of the Special Tahsildar, Haripad that O.A. No.29/1977 was a proceeding filed by the original defendant under Section 72 of the Kerala Land Reforms Act, 1963. In the said proceedings, the landlord of the property as well as the plaintiffs in O.S. No.35/1988 and the predecessor-in-interest of the plaintiffs in O.S. No.38/1988 were respondents. Thereafter, as per the order in O.A. No. 29/1977, where all the above parties contested, the Land Tribunal issued patta in favour of the plaintiffs in O.S. Nos.35 and 38 of 1988 as per Exts.A3, A10 purchase certificates. Much before i.e. in the year 1975 itself, the plaintiff in O.S. No.33/1988 obtained Ext.A1 patta in respect of his 18 cents of property.

It has been consistently found by the trial court as well as the Appellate Court that since there is no appeal filed challenging Exts.A1, A3 and A10 purchase certificates, before the Appellate Court as provided under Section 102 of Kerala Land Reforms Act, the purchase certificates conferred title upon the respective plaintiffs and the contention raised by the defendants disputing the title of the plaintiffs cannot be sustained.

It  is  argued  by  the  learned  counsel  for  the appellants that the appellants have the right to challenge the purchase certificates before the Civil Court, since those purchase certificates were obtained by playing fraud. In this connection, the learned counsel for the appellants placed a copy of written statement filed in O.S. No.34/1988 and in paragraph No.6 a bald statement to the effect that the purchase certificates were obtained fraudulently is stated. The exact contention is extracted for clarity as under:

"പട്ടയം കൃത്രിമമായി സമ്പാദിച്ചിട്ടുള്ളതാണ് "

It is the well settled law that when fraud is alleged, while disputing the genuineness of a document, fraud should have been pleaded in detail so as to enlighten the otherside to defend the allegation of fraud with certainty.

In a Three Bench decision of the Apex Court reported in [2020 KHC 6486 : 2020 (15) SCC 209 : 2020 (10) SCALE 1] Union of India and Another v. M/s. K. C. Sharma & Co. and Others, the Apex Court held as under:

It is fairly well settled that fraud has to be pleaded and proved. More so, when a judgment and decree passed earlier by the competent court is questioned, it is necessary to plead alleged fraud by necessary particulars and same has to be proved by cogent evidence. There cannot be any inference contrary to record. As the evidence on record discloses that fraud, as pleaded, was not established, in absence of any necessary pleading giving particulars of fraud, we are of the view that no case is made out to interfere with the well reasoned judgment of the High Court.

In Another decision of the Apex Court reported in [2022  KHC  7039  :  2022  SCC  OnLine  SC  1330  : AIROnLine 2022 SC 356 : 2022 (5) KLT SN 41 : 2022 (5) KLT OnLine 1016 : AIR 2022 SC 4724] Ramaswamy C. S. v. K. Senthil and Others, it has been held as under:

Mere stating in the plaint that a fraud has been played is not enough and the allegations of fraud must be specifically averred in the plaint. otherwise merely by using the word "fraud", the plaintiffs would try to get the suits within the limitation, which otherwise may be barred by limitation. Therefore, even if the submission on behalf of the respondents - original plaintiffs that only the averments and allegations in the plaints are required to be considered at the time of deciding the application under Order VII R.11 CPC is accepted, in that case also by such vague allegations with respect to the date of knowledge, the plaintiffs cannot be permitted to challenge the documents after a period of 10 years. By such a clever drafting and using the word "fraud", the plaintiffs have tried to bring the suits within the period of limitation invoking S.17 of the limitation Act. The plaintiffs cannot be permitted to bring the suits within the period of limitation by clever drafting, which otherwise is barred by limitation.

Here, the one word allegation is that Exts.A1, A3 and A10 purchase certificates were obtained by fraud, which, in fact, is quite insufficient to address the nature of fraud, though in O.A. No.29/1977 the 1st defendant was a party. Ignoring the fact that the allegation of fraud is vague, if the contention as to fraud is appreciated, the same also not at all established in a case wherein the 1st defendant, who was alive during the initial trial (trial before remand) did not mount the box to support the said contention.

It is also seen from the judgment of the trial court as well as the Appellate Court that, the plea of adverse possession raised in the written statement is also not at all proved, in any manner.

Thus, it appears that the trial court as well as the Appellate Court rightly granted decree in favour of the plaintiffs mainly relying on the finality of Exts.A1, A3 and A10 purchase certificates as conclusive proof of title. In view of the matter, none of contentions raised by the defendants to beat the title of the plaintiffs could be found in these regular second appeals.

Even though the learned counsel for the appellants attempted to get these appeals 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 these second appeals to admit and maintain these regular second appeals.

Thus, in these appeals, the learned counsel for the appellant failed to raise any substantial question of law warranting 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.”

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) 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 stipulates 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.

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 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 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 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.

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 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.

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 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.

In these regular second appeals, 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.

In this matter, on evaluation of the materials, I have already discussed, no substantial question of law arises for consideration so as to admit these second appeals. It is held further that these second appeals 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 formulated to adjudicate in these regular second appeals.

Accordingly, these regular second appeals stand dismissed, without being admitted.

All interlocutory application also stands dismissed.