Sreekumari vs Anasoya

A. Badharudeen, J

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.157 of 2018 dated 12.01.2023 on the files of the Court of the Additional District Judge-I, Mavelikkara arose from the decree and judgment in O.S. No.373 of 2012 dated 31.10.2018 on the files of the Munsiff Court, Kayamkulam. The appellant herein is the plaintiff and respondents are the defendants in the above suit.

Heard the learned counsel for the appellants, on admission. Perused the relevant materials and the verdicts under challenge.

I shall refer the parties in this appeal with reference to their status before the trial court.

In this matter, The plaintiff filed the suit and sought the relief of declaration of title over the plaint A schedule property, to fix the eastern boundary of the plaint A schedule property and to construct fence on the said boundary. The precise allegation is that, the plaintiff obtained title over the plaint schedule property comprised in old survey No.381/1C on the strength of a sale deed No.1164 dated 18.05.1994 and the plaintiff has been possessing and enjoying the same. At the same time, it is stated that the predecessor-in-interest, Sri.Ramakrishnan Nair mortgaged the entire property to Sri.Vasudeva Kurup. Thereafter, in order to redeem the mortgage, Sri.Ramakrishnan Nair instituted O.S. No.280/1961 on the files of the Munsiff Court, Kayamkulam. In execution of the decree in the said suit, the property was delivered in favour of Sri.Ramakrishnan Nair, who is the decree holder in E.P. No.144/1991 in O.S. No.280/1961. According to the plaintiff, there occurred a mistake in the survey number of the property, while executing Ext.A5 sale deed. The specific contention is that, in the title deed, the survey number of the plaint schedule property is stated as 381/6B. But, the actual survey number is 381/1C. The further contention was that, now the mistake in the survey number was corrected by the District Collector, Alappuzha. Therefore, the plaintiff is entitled to get declaration of title over the plaint schedule property and also the consequential reliefs.

The defendants resisted the suit and denied title of the plaintiff over the plaint schedule property and also pointed out filing of another suit O.S. No.300/2000 earlier and dismissal of the appeal arose therefrom as per judgment of this Court dated 28.03.2012 in R.S.A. No.1111 of 2011. They also raised plea of adverse possession insofar as the plaint schedule property is concerned.

The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 to 6 examined and Exts.A1 to A7 marked on the side of the plaintiff. DWs 1 and 2 examined and Exts.B1 to B8 marked on the side of defendants. Exts.C1 series marked as court exhibits. Exts.X1 to X8 were also marked.

On appreciation of evidence, the learned Munsiff dismissed the suit holding that the plaintiff failed to prove title over plaint A schedule property.

Though, appeal was filed before the Appellate Court, vide A.S. No.157/2018, the Appellate Court, re-appreciated the evidence and concurred the finding of the trial court. It was observed by the Appellate Court that even though the property is now in possession of the defendants, in view of delivery in E.P. No.144/1991 in favour of Sri.Ramakrishnan Nair, no prayer for recovery of possession was sought for by the plaintiff and on that ground also the suit would not succeed.

In this matter, the learned counsel for the appellant/plaintiff argued meticulously, by asserting title of the plaintiff over the plaint schedule property by highlighting the schedule description in Ext.A5. According to the learned counsel for the plaintiff, now the resurvey number has been corrected by Ext.A6 order of the District Collector.

The trial court specifically noted that even though there was a mistake in the resurvey number in Ext.A5 title deed, no rectification deed was executed at the instance of the executants of the document or his legal representatives, in any manner. Instead, the vital mistake in resurvey number in Ext.A5, which was executed in the year 1994 was corrected by the order of the District Collector, after the delivery of the property in favour of the decree holder in the previously instituted suit i.e. O.S. No.280/1961. This is the context in which the prior title deed assumes significance. The trial court as well as the Appellate Court found that the prior title deed in the name of Sri.Ramakrishnan Nair not produced by the plaintiff to prove that he had got title in respect of the property in survey No.381/1C as per the prior title deed mentioned in Ext.A1.

When the plaintiff seeks the relief of declaration of title, it is the duty of the plaintiff to prove the title independently by cogent and convincing evidence and the plaintiff could not succeed on the weakness of the defendants on finding shelter on the plea raised by the defendants raising adverse possession, without admitting the title of the plaintiff. It is relevant to note that the Appellate Court doubted the very execution of Ext.A5 document by Sri.Ramakrishnan Nair, the father of the plaintiff in favour of his daughter by adopting the method of executing a power of attorney in favour of his son-in-law.

As per Ext.A5 title deed, the property in resurvey No.381/1C not incorporated and as per the proceedings of the District Collector, the survey number in Ext.A5 got corrected. I do not think that the correction made by the District Collector by itself is not sufficient to hold that as per Ext.A5, the plaintiff obtained title in respect of the plaint schedule property in survey No.381/1C, without getting support in this regard from the prior document of Ext.A5. It is admitted by the plaintiff that, now the plaint schedule property was delivered in favour of Sri.Ramakrishnan Nair, in execution of the decree in E.P. No.144/1991 in O.S. No. 280/1961. If so, the plaintiff should have sought the relief of declaration of title as well as recovery of possession and mere filing of the suit for fixation of the boundary would not suffice the necessity of recovery of possession. Therefore, the present suit is barred as per the proviso to Section 34 of the Specific Relief Act, 1963. Proviso to Section 34 of the Specific Relief Act, is as under:

“Discretion of court as to declaration of status or right.—Any person entitled to any legal character; or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.

PROVIDED that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

On appraisal of the relevant materials, it could be gathered that the concurrent finding of the trial court as well as the Appellate Court holding the view that the plaintiff miserably failed to establish title over the plaint schedule property, does not require any interference at the hands of this Court.

In view of the above discussion, no substantial question of law emerges in this matter to be formulated to maintain and admit this regular 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].

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.

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 this matter, no substantial question of law arises for consideration so as to admit this second appeal. It is the well settled law that a second appeal 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 this regular second appeal.

Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above.

All interlocutory applications pending in this regular second appeal stand dismissed.