Vallikkadan Ayamu Haji vs Vallikkadan Pathummakutty

A. Badharudeen, J

This Regular Second Appeal arises out of final judgment in I.A.No.305/2015 in O.S.No.293/2012 on the files of the Sub Court, Manjeri, which was confirmed in A.S.No.105/2018 by the learned Additional District Judge, Manjeri, as per decree and judgment, dated 8.4.2022.

The appellant is the original 1st  defendant and 1st respondent in I.A.No.305/2015 (the final decree application) in O.S.No.293/2012. Respondents are the plaintiffs and other defendants in the suit.

Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents.

I shall refer the parties in this appeal as 'plaintiffs' and '1st defendant' for convenience.

Originally, suit was filed by Vallikkadan Pathummakutty and Vallikkadan Iyyachakutty, as plaintiffs, for partition of the plaint A and B schedule properties. After trial, the trial court found that the properties were partible and accordingly, preliminary decree of partition was passed.

Thereafter, the plaintiffs, as petitioners, filed I.A.No.305/2015, to pass final decree by allotting separate shares in terms of the preliminary decree by metes and bounds.

Even though the respondents 1 to 8 appeared, they did not oppose passing of final decree. Accordingly, Commissioner and Surveyor were appointed and the Commissioner filed report on 6.8.2016.

As on 19.10.2016, the 1st defendant filed I.A.No.951/2016, raising objection to the Commission report and plans with a prayer to set aside the same. The trial court considered the above I.A. along with the final decree application and finally passed final decree, acting on Exts.C2 and C2(a) plans form part of Ext.C1 report.

As far as Ext.C2(a) plan pertaining to plaint B schedule item is concerned, the parties have no dispute at all. However, the dispute is confined insofar as Ext.C2 plan, pertaining to plaint A schedule property.

The learned counsel for the appellant/1st defendant submitted that, Ext.C2 plan cannot be accepted for partition of the properties, mainly on two grounds. The first ground according to the learned counsel is that, after partition of the properties, as per Ext.C2, a way set apart as common towards the property as plot No.5. It is submitted further that, plot No.5 in Ext.C2(a) plan was set apart, on the finding of the Commissioner that on the northern side of the plaint A schedule property, there is a mud road and the 1st defendant owns the property on the northern side of the said mud road.

Secondly, it is argued that plot No.4 allotted to the 1st defendant, who purchased two more shares from the other sharers is rocky land, not capable of cultivation and the prime area, where cultivation in abundance was allotted as plot Nos.1, 2 and 3 in favour of other sharers.

According to the learned counsel for the appellant, when there is dispute with regard to the way available to a property, which is the subject matter of final decree, the way in dispute also should have been decided in the final decree proceedings itself and not by a separate suit. It is argued further that, as per the observation of the appellate court in Paragraph No.12 of the appellate court judgment, the appellate court observed that, the right of the parties in the Mud Road seen and reported by the Advocate Commissioner on the Northern side of the plaint ‘A’ schedule property, could not be decided in the final decree proceedings for partition. According to the learned counsel for the appellant, the said finding is erroneous.

As regards to the first contention raised, the learned counsel for the plaintiffs/respondents 1 and 2 would submit that the properties on all three sides of the plaint A schedule is the property, owned by the appellant Ayamu Haji and also the property on the northern side of plaint A schedule is also property owned by Ayamu Haji, where he has been residing at the house situated therein. According to the learned counsel, there existed a mud road towards access to plaint A schedule, as reported by the Commissioner and the existence of the mud road even admitted by DW1, in his chief affidavit, filed in the final decree proceedings, where he got examined as DW1. He also would submit that no recognized public way is available to the plaint A schedule property. Therefore, the objection raised by the appellant as against the Commission report, was found against by the trial court as well as the appellate court. He would submit that the contention raised by the learned counsel for the appellant that the right of way, which was reported by the Commissioner on the northern side of the plaint A schedule property also must be decided in the final decree stage cannot sustain, since the same is not a matter in issue in the final decree proceedings. Accordingly, it is submitted that the final decree and judgment under challenge, are liable to be confirmed and this appeal does not deserve admission.

While allaying the controversy in response to the two objections specifically raised by the learned counsel for the appellant, the first objection is with regard to the report of the Commissioner stating that there exists a mud road on the northern side of plaint A schedule property, though the Commissioner did not specifically locate the said mud road. In paragraph No.5 of the Commission report, Commissioner reported that, there is a mud road seen on the northern side of plaint A schedule property. In the affidavit in support of I.A.No.951/2016, the appellant raised contention that there is no mud road on the northern side of A schedule property and the Commissioner reported so, so as to facilitate the plaintiffs to claim right of way through the property of the appellant on the northern side. It is also stated that, even though as per Ext.C2 plan, a way as plot No.5 was provided in the plaint A schedule property, no road in continuation of the same is available and in order to use the same, such a way also should have been there. Apart from the affidavit in support of I.A.No.951/2016, the appellant filed chief affidavit and he got examined as DW1 in the final decree proceedings. In the chief affidavit, the version of DW1 is that, there is no way available to plaint A schedule property and the property on the eastern side of the A schedule property is paddy field. It is also affirmed by DW1 that through the ridges of this paddy field, it is possible to have access to plaint A schedule property. It is also stated that, when the appellant was possessing plaint A schedule property, the property of the appellant was used as an access to plaint A schedule property, but there is no permanent way available to plaint A schedule property. In the report, it is also stated that, at the time when the Commissioner inspected the property, there existed a motorable road on the northern side.

As I have already pointed out, in paragraph No.5 of the report, the Commissioner specifically stated existence of a mud road on the northern side of plaint A schedule and at the same time, the Commissioner stated that plaint A schedule has no direct access to any public road otherwise. In this context, the Commission report Ext.C1 and Ext.C2 series plan obtained during the preliminary decree stage also assume significance. On going through Ext.C1 report and Ext.C2 series plan, prepared during the preliminary decree stage, the Commissioner specifically shown a way towards the property of the appellant and towards plaint A schedule and the same way has been reiterated in the Commission Report and Ext.C2, in the final decree proceedings also.

According to the learned counsel for the appellant, the appellant is aggrieved in the matter of lack of opportunity for the appellant to cross examine, the Commissioner and Surveyor to establish non-existence of mud road on the northern side of plaint A schedule and also availability of way on the eastern side through the ridges of the paddy field.

How far this contention would succeed, is the prime question. In this matter, I.A.No.951/2016, filed by the appellant/1st defendant with a prayer to set aside Exts.C2 and C2(a), was dismissed by the trial court. The trial court found that, at the time of division of the properties as plot Nos.1 to 4, as per Ext.C2(a) plan, plot No.5 is specifically provided as way to connect the plaint schedule property from the mud road on the northern side of the plaint A schedule property and the trial court as well as the appellate court found that the mud road was reported by the Commissioner in Ext.C2.

I have gone through Ext.C1 as well as Ext.C2 in this case as well as Ext.C1 and Ext.C2 generated during the preliminary decree stage, as discussed hereinabove. It could be gathered that, as per Ext.C1 as well as Ext.C2, there is a mud road on the northern side of plaint A schedule property. Accordingly, the Commissioner provided plot No.5 as the way to reach the plaint schedule property, in continuation of the mud road. As far as right of the respondents herein in relation to the mud road is concerned, that is not a matter in issue in the final decree proceedings, since the said contention not raised by the plaintiffs or by the defendants. Therefore, the dispute raised by the appellant contending that there was no mud road on the northern side of plaint A schedule, cannot be sustained, since Exts.C1 and C2 categorically show existence of such a mud road. Regarding the right of the said mud road, the same is not a subject matter in issue in the final decree proceedings. Thus, non-examination of the Commissioner and Surveyor is of no serious consequences and this challenge found to be of no avail to the appellant.

As far as the second challenge, pertaining to the value of the property allotted to the appellant as plot No.5 in Ext.C2(a) plan, it could be gathered that only vague allegations insofar as its value raised in the affidavit in support of I.A.No.951/2016 and in the chief affidavit filed by the 1st defendant, who was examined as DW1. On evaluation  of the evidence, there is nothing available in evidence to hold that the plot allotted to the 1st defendant is one having lesser value, in a case, where the said plot was allotted to the appellant adjoining his properties, on the eastern side of the plaint A schedule, in a most convenient manner. Therefore, the second challenge also could not yield.

Since it is found that the properties were divided as per metes and bounds to the extent possible, there is no error committed by the trial court or the appellate court in granting final decree, relying as per Ext.C2(a) plan.

In this case, the learned counsel for the appellant/1st defendant 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.”

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.

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].

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 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.

In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal.

In the result, this appeal is found to be meritless and the same is dismissed without being admitted.

All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court, forthwith.