Dismissed

M.R.Radhakrishnan v. K.Anathan Nambiar

Kerala HC15 Dec 2023RSA/701/2022

Case brief

AI extract

What is this about?

In this second appeal regarding a property suit for boundary fixation and injunction, the High Court of Kerala dismissed the appeal. The court held that the suit was maintainable as it was filed with general liberty, did not find substantial legal error, and concluded that no substantial question of law arose to warrant admission.

What did the court decide?

The Second Appeal is dismissed without being admitted; interlocutory orders vacated.

M.R.Radhakrishnan Vs K.Anathan Nambiar — Property and Title | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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FRIDAY, THE 15^TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945

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RSA NO. 701 OF 2022

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AGAINST THE DECREE & JUDGMENT DATED 31.01.2022 IN AS 2/2015 OF II ADDITIONAL SUB COURT, ERNAKULAM

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DECREE & JUDGMENT IN OS 426/2009 OF I ADDITIONAL MUNSIFF

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COURT, ERNAKULAM

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APPELLANTS/APPELLANTS 1 & 2/DEFENDANTS 1 & 2:

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1 M.R.RADHAKRISHNAN,

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AGED 65 YEARS, S/O.LATE RAMAN, BUSINESS, EMMAR TRADERS, PATTUPURACKAL SHOPPING COMPLEX, KAKKANAD, KOCHI – 682030.

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2 VIJAYALAKSHMI RADHAKRISHNSN, AGED 57 YEARS,

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W/O M.R.RADHAKRISHNAN, MATTATHUPARAMBIL HOUSE, KAKKANAD, KOCHI – 682030.

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BY ADV THOMAS GEORGE

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RESPONDENTS/RESPONDENTS 1 TO 8 & ADDL.APPELLANTS 3 TO

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8/PLAINTIFFS 1, 2 & DEFENDANTS 3 TO 8:

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1 K.ANATHAN NAMBIAR AGED 63 YEARS S/O.KUNJAMBU NAMBIAR,BUSINESS, KOKKUNNATHU HOUSE, H.NO.1/934, SATELLITE TOWNSHIP, KAKKANAD, KOCHI682037.

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2 ARAVIND.K NAMBIAR AGED 30 YEARS

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S/O.ANATHAN NAMBIAR,ENGINEER, KOKKUNNATHU HOUSE, H.NO.1/934, SATELLITE TOWNSHIP, KAKKANAD, KOCHI – 682037.

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3 ABDUL KHADIR AGED 58 YEARS

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S/O.NEITHELL AHAMMED PILLA, MANATTUKTTIKATTU HOUSE, VAZHAKKALA SOUTH, KOCHI – 682030.

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4	PAREETH AGED 58 YEARS
	FATHER'S NAME NOT KNOWN, MANATTUKUTTIKKATU HOUSE, VAZHAKKALA SOUTH, KOCHI – 682030.*(DIED)
5	AZEEZ MOOLAYIL AGED 54 YEARS
	FATHER'S NAME NOT KNOWN, BUSINESS, MOOLAYIL
	STORES, SEAPORT AIRPORT ROAD, NEAR T.V STATION, KOCHI – 682021.
6	K.I.ABOOBAKER AGED 58 YEARS
	FATHER'S NAME NOT KNOWN, BUSINESS, KILLIYANKAL HOUSE, PADAMUGHAL, VAZHAKKALA, KOCHI – 682021.
7	SALIM AGED 46 YEARS
	S/O.NEITHALI AHAMMED PILLA, KUNNUMPURATHU HOUSE, KUNNUMPURAM, KAKKANAD, KOCHI-682021, PIN - 682021
8	PIONEER INFRACTURE LIMITED, REPRESENTED BY ITS MANAGING DIRECTOR, ANIL NAIR, AGED 44 YEARS,S/O THANKAPPAN NAIR,M.D PIONEER INFRASTRUCTURE SWAPNIL ENCLAVE, 3RD FLOOR, MARINE DRIVE, KOCHI – 682031.
9	SIBU JACOB VARGHESE AGED 32 YEARS
	S/O.BABU JACOB, PARAPPALLY, THAZHATHU HOUSE,
	KANAUR.P.O., PIN – 686515.
10	RENJITHA VALSALAN, AGED 32 YEARS W/O.SIBU JACOB VARGHESE PARAPPALLY, THAZHATHU
	HOUSE, KANAUR.P.O., PIN – 686515.
11	MOLI
	AGED 58 YEARS W/O.M.M.FRANCIS, MAZHUKKATTU (H), THRIKKAKARA, PIN-682 037, NOW RESIDING AT MAZHUKKATTU HOUSE, NEAR LITTLE ANGEL SCHOOL, KOCHI – 682037.
12	BIBIN FRANCIS AGED 34 YEARS
	S/O.M.M.FRANCIS PARAPPALLY THAZHATHU (H),
	KANAUR.P.O, 686515, NOW RESIDING AT MAZHUKKATTU
	(H), NEAR LITTLE ANGELS SCHOOL, KOCHI – 682037.

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13 G.ASHOK KUMAR, AGED 50 YEARS, ACHUTHA NIVAS, EDAPPAL, THAVANOOR, THAVANOOR TALUK, PIN – 679573. 14 SINI CHACKO AGED 36 YEARS D/O.M.J.CHACKO, AGED 36 YEARS, MALEACKAL VACHULEKKAL(H),THIRUVANKULAM- 682305, NOW RESIDING AT GRACE VILLAS, KALLADAYI LINE, CESZ P.O., NEAR LITTLE ANGELS SCHOOL, KOCHI-682037. ADDL.15 SMT.SOUDA PAREED AGED 69 YEARS, W/O.LATE PAREETH, MANTTUKUTTIKKATU HOUSE, VAZHAKKALA SOUTH, KOCHI- 682030. ADDL.R16 SRI.HARIS AGED 43 YEARS, S/O.LATE PAREETH, MANTTUKUTTIKKATU HOUSE, VAZHAKKALA SOUTH, KOCHI682030. ADDL.R17 SRI.JABIR AGED 39 YEARS,S/O.LATE PAREETH, MANTTUKUTTIKKATU HOUSE, VAZHAKKALA SOUTH, KOCHI- 682030 *(THE LEGAL HEIRS OF DECEASED R4 ARE IMPLEADED AS ADDL.R15 TO R17 AS PER ORDER DATED 12.07.2023 IN IA.2/2023.) BY ADVS. N.C.JOSEPH SHAJI CHIRAYATH ADVOCATE No Advocate JIJI M. VARKEY(J-650) M.K.SAFEELA BEEVI(S-1575) M.M.SHAJAHAN(K/1204-E/2010) SIMSAR UL HAQ K.Y(K/001810/2023)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.12.2023, THE COURT ON 15.12.2023 DELIVERED THE FOLLOWING:

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"C.R"

A. BADHARUDEEN, J.

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================================

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R.S.A No.701 of 2022

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================================ Dated this the 15 th day of December, 2023

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J U D G M E N T

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Defendants 1 and 2 in O.S.No.426/2009 on the files of the I st

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Additional Munsiff Court, Ernakulam, who are aggrieved by the decree and judgment in the above Suit and in A.S.No.2/2015 dated 31.01.2022, on the files of the Sub Court, Ernakulam, assail the same in this Second Appeal filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure.

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2 . I shall refer the parties in this appeal with reference to

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their status before the trial court, as plaintiffs’ and defendants’ hereafter for easy reference.

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3 . Heard the learned counsel for the appellants/plaintiffs as

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well as the contesting respondents, on admission. Perused the

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records.

4 . Plaintiffs filed the suit for fixation of boundary and

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permanent prohibitory injunction. According to the plaintiffs, plaint schedule property having an extent of 41.40 Ares belong to them. The 1 st plaintiff purchased 33.70 Ares of land as per document Nos.4111/2005 and 4113/2005 and the 2 nd plaintiff purchased 7.70 Ares of land as per document No.4112/2005. Thus total extent of 41.40 Ares of land lying as a single contiguous plot, without demarcation. The plaintiffs' case further is that the defendants encroached upon a portion of the plaint schedule property and now the property of the plaintiffs and the defendants are lying without specific boundaries.

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5 . Filing of earlier Suit as O.S.57/2008 before the Munsiff Court, Ernakulam against the 2 nd defendant and his nephew, for fixation of the southern boundary of the plaint schedule property and for mandatory injunction, also pointed out, on the submission that the said Suit was withdrawn with liberty to file a fresh Suit and

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thereafter the present Suit had been filed.

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6 . Defendants 1 and 2 filed written statement and admitted

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title deed of the plaintiffs. Defendants 1 and 2 denied transaction

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between the plaintiffs and the 8 th defendant in the matter of construction of multi-storied building in the plaint schedule property. The encroachment alleged by the plaintiffs was denied. It was contended that the Suit is not maintainable, as one filed, after withdrawal of earlier Suit as O.S.No.57/2008.

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7 . The trial court recorded evidence in this matter confined

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to that of PW1, Exts.A1 and A2 on the side of the plaintiffs; DW1

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and Exts.B1 and B2 on the side of the defendants. CW1 and Exts.C1, C1(a), C2 and C2(a) as court exhibits. Finally, the trial court granted decree as under:

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“In the result, the suit is decreed as follows:-

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1. The plaintiff is entitled to fixation of south eastern boundary of the plaint schedule property as per Exts.C2 report and C2(a) sketch and including the portion of plaint schedule property marked as `D' in blue colour in Ext.C2(a) sketch.

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2 . The defendants 1 and 2 are directed by way of mandatory injunction to remove the construction made by them encroaching into the portion of plaint schedule property marked as `D' in blue colour in Ext.C2(a) sketch.

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3 . The defendants 1 and 2 are restrained by way of permanent prohibitory injunction from trespassing into the plaint schedule property.

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4 . Parties are directed to bear their respective costs.” 8 . Though appeal was filed challenging the verdict of the

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trial court, the appellate court also confirmed the said finding.

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9 . At the time of hearing on admission, the learned counsel

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for defendants 1 and 2 submitted that the present Suit is one filed after withdrawal of O.S.No.57/2008, earlier filed by the 2 nd plaintiff

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herein as 1 st plaintiff, where the 1 st defendant herein got arrayed as the 1 st defendant. The said Suit was withdrawn with liberty to file a

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fresh Suit. According to the learned counsel for defendants 1 and 2, when a second Suit is filed enjoying the liberty granted by the court to file a fresh Suit, the plaintiffs could not widen the scope of

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the Suit from its earlier nature and in the present case, the Suit has

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been filed in a wider compass claiming more rights than claimed in

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the earlier Suit. Therefore, for the said reason alone, the Suit must fail.

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10. Per contra, it is submitted by the learned counsel for the

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plaintiffs that the earlier Suit O.S.No.57/2008 was withdrawn with liberty to file a fresh Suit in respect of the same subject matter and the liberty is not subject to any constraints. Therefore, the plaintiffs filed a proper Suit by incorporating necessary pleadings since there was cause of action for the same. Therefore, the contention raised by the learned counsel for defendants 1 and 2 could not yield.

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11. In order to support the contention mooted by the learned counsel for defendants 1 and 2, he has placed a decision of this Court reported in [2020 (5) KLT 735], Sabu Issac v. Antony Chacko. In the said case, this Court considered the scope of Order 23 Rule 1(1) and 1(3). It was held therein that the Court can allow the application filed under Order XXIII Rule 1(3) of the Code for withdrawal of the suit with liberty to bring a fresh suit only on

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satisfaction of the condition in either of the Clauses (a) or (b), that is, existence of a “formal defect” or “sufficient grounds”. It was further held that “Formal defect” is a defect of form prescribed by the rules of procedure such as, want of notice under Section 80 of the Code, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, mis-joinder of parties, failure to disclose a cause of action etc. In order to constitute a ground for making an application for withdrawing from the suit with liberty to file fresh suit on the same subject matter, it is not sufficient to show that there is some formal defect in the suit but it is also necessary to show that the suit would fail on account of such formal defect. It was further held that the expression “sufficient grounds” occurring in clause (b) of Rule 1(3) of Order XXIII of the Code is not to be read ejusdem generis with the expression “formal defect” occurring in clause (a). There is no requirement that “sufficient ground” pleaded by the plaintiff for seeking permission to withdraw the suit with liberty to institute

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fresh suit shall be analogous to a formal defect. There can be no reason as to why the import and amplitude of the expression “sufficient grounds” in clause (b) of Rule 1(3) of Order XXIII of the Code should suffer any unwarranted confinement. It was also held that the plaintiff has no absolute right, at the appellate stage, to withdraw from the suit. An application made at the appellate stage to withdraw the suit cannot be allowed by the court if granting such permission would have the effect of depriving or destroying or nullifying or annulling any right which has come to be vested with the defendant under the decree.

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12. Going by the ratio of the above ruling, the said decision in no way held a ratio in support of the contention raised by the learned counsel for defendants 1 and 2.

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13. The law is so transparent from the language of Order 23 of the Code of Civil Procedure (`C.P.C' for short hereafter) which provides that :

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“1. Withdrawal of suit or abandonment of part of claim:-

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(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

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Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

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(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

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(3) Where the Court is satisfied,-

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(a) that a suit must fail by reason of some formal defect, or

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(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

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it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

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(4) Where the plaintiff-

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(a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.

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(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]”

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Therefore, it is abundantly clear that when an application is filed under Order 23 Rule (3) of C.P.C, seeking withdrawal of a pending Suit, with liberty to file a fresh Suit for the reasons mentioned either of clauses (a) or (b) of Order 23(3) and the court grants permission, the plaintiff/s would get the liberty to file a fresh Suit on the same subject matter, for which no restriction, unless in the order itself the court should have limited the remedy by a speaking reasoned order to a part of the claim. To put it otherwise the Court has the power under Order 23(3) to grant permission to withdraw the Suit, the same shall be on such terms as the Court thinks fit and

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not otherwise. Therefore, if no terms incorporated in the order granting permission to withdraw the Suit, it is an open permission to file a second Suit on the very same subject matter. If the Court imposes terms/constraint s / restrictions while granting permission, filing of second Suit shall be in accordance with such terms/constraints/restrictions. So generally, when a Suit is withdrawn with liberty to file a fresh Suit on the same subject

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matter without imposing any terms/restriction/or constraints in the order of withdrawal, the plaintiff/s could very well institute a fresh Suit on the same subject matter or part of claim by seeking all reliefs, supported by pleadings thereof. In view of the above discussion, the argument at the instance of the learned counsel for defendants 1 and 2 found to be unsustainable and the same is repelled.

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14. Secondly it is argued by the learned counsel for defendants 1 and 2 that Ext.C2(a) sketch relied on by the trial court and the appellate court does not depict the proper lie of the plaint schedule property as well as the defendants' property. Therefore, the courts below went wrong in accepting Ext.C2 (a) to pass the verdicts impugned herein.

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15. In this case the trial court found that the plaintiffs are entitled to get fixation of south-eastern boundary of the plaint schedule property as per Ext.C2 report and Ext.C2(a) sketch including the portion of the plaint schedule property marked as `D'

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in blue colour in Ext.C2(a) sketch. According to the learned counsel for defendants 1 and 2, the court below went wrong in placing reliance on Ext.C2(a) sketch since the same is not in accordance with the respective title deeds of the parties. It is also submitted that specific objection was filed by defendants 1 and 2, as on 02.01.2014 in this regard. On perusal of the objection, the said contention seen raised on the submission that the Commissioner went wrong in locating 0.15 Ares of property as the area encroached by the defendants without mentioning which of the defendants encroached in the property of the plaintiffs. I have perused Ext.C2(a) plan along with the objection raised. As per Ext.C2(a) plan, the Commissioner measured and located the properties of the plaintiffs as well as the defendants in accordance with their respective title deeds. Plot A is the property having an extent of 14.40 Ares covered by document No.4113/2005 marked as Ext.A3 and plot B is the property having an extent of 19.30 Ares as per document No.4111/05, marked as Ext.A1. Similarly,

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property having an extent of 7.45 Ares is located as C schedule, covered by document No.4112/2005, marked as Ext.A2. Thus as per Ext.C2(a) plan, the properties of the plaintiffs based on the title deeds of the plaintiffs, marked as Ext.A3, A1 and A2 respectively, were specifically located. Similarly, plot F is the property having an extent of 5.87 Ares located as that of the defendants, covered by Ext.B1 sale deed No.1525 of Thrikkakara S.R.O. The Commissioner located 0.15 Ares of property as plot F, encroached upon by the defendants forming part of A, B and C plots covered by Exts.A1 to A3. Indisputably, as per Ext.B1, defendants 1 and 2 obtained property having an extent of 5.87 Ares, alone located as plot `F' in Ext.C1(a) plan.

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16. In this connection, it is relevant to refer the evidence of the 1 st defendant, who was examined as DW1. By filing chief affidavit, DW1 deposed that the property (Ext.B1) belonged to the 2nd defendant, who is the wife of DW1. He had deposed that defendants 1 and 2 have no dispute as regards to the title of the

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plaintiffs, as per Exts.A1 to A3. Further DW1 deposed that the 2 nd defendant obtained property as per Ext.B1. In Ext.C1 commission report and Ext.C2(a) plan, the property of the defendants is shown in tune with the extent shown in Ext.B1. He also deposed that there exists boundary on the northern side of the defendants' property on certain portions with that of the southern side of the plaintiffs' property. Thereafter, there existed a pathway and there was no boundary in this area. During cross examination also, DW1 confined the title of the defendants in relation to Ext.B1, as located in Ext.C2(a) plan. Thus, it is evident that the finding of the Commissioner to the effect that plot D, having an extent of 0.15 Ares, was encroached by the defendants is well established in this case. It is in this context, the trial court granted decree and the same was confirmed by the appellate court. On perusal of the available materials, it has to be held that plot D having an extent of 0.15 Ares is part and parcel of the plaint schedule property covered by Exts.A1 to A3 and the same is not at all part of plot F having an

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extent of 5.87 Ares, obtained by the defendants as per Ext.B1.

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17. A decision of this Court reported in [2022(2) KHC 435,

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Sabu v. Sasi has been placed by the learned counsel for the appellant and submitted that in this decision this Court considered various components of a survey plan and held that a survey plan becomes complete and self explanatory only when the same contains, F line', G-line', Check-line' and offset' measurements. G-line' measurements, Check-line' measurements and offset' measurements are entered in the Ladder' in the FM sheet. Relying on the above decision, it is argued by the learned counsel for the appellant that Ext.C2(a) plan herein lacks the above essentials and therefore, for the said reason also Ext.C2(a) plan could not be relied on.

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18. In this connection, it is pertinent to note that in the objection filed by defendants 1 and 2 to the commission report and survey sketch, no valid objections raised. There is no challenge on Ext.C2(a) plan on the ground that the same lacks F line', G line',

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Check-line' and Ladder'. Though it is held by this Court in Sabu 's case ( supra ) regarding the requirements of a survey sketch, there is no reason to disbelieve or disown all survey plans produced before the Courts for want of the said essentials where the survey plan is otherwise acceptable. To be more explicit, when there is no challenge regarding absence of the ingredients dealt in Sabu 's case ( supra ) in the objection filed, disputing the survey plans, there is no reason to disown the survey plan by way of remand or otherwise and the said survey plan can be acted upon to decide the matter in issue. Therefore, it is held that the decision in Sabu 's case ( supra ) would apply while preparing survey plans after the decision, in relation to cases pending before the trial courts, and in so far as survey plans before the first appellate courts and second appellate court, the said decision would apply only when such specific challenges, as dealt in Sabu 's case ( supra ), were raised in the objection filed by the parties. Otherwise, there is no reason to disbelieve or disown the survey sketch and plans following the ratio in Sabu v. Sasi 's case ( supra ).

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Holding so, this challenge also must fail.

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19. To sum up, the trial court rightly granted decree and the appellate court confirmed the same. Therefore, the concurrent verdicts do not require any interference at the hands of this Court and the learned counsel for defendants 1 and 2 miserably failed to point out any substantial questions of law to admit and maintain the Second Appeal.

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20. In order to admit and maintain the Second Appeal, substantial question of law necessarily to be formulated by the High Court within the mandate of Order XLII Rule 2 Read with

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Section 100 of C.P.C.

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In this case, the learned counsel for the defendant failed to raise any substantial question of law warranting admission of the Second Appeal. Order XLII Rule 2 provides thus:

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“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,

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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.”

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22. 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

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allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall b e 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.

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23. 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:

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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].

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24. In a latest decision of the Apex Court reported in [2023

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(5) KHC 264 : 2023 (5) KLT 74 SC], Government of Kerala v. Joseph , it was held, after referring Santosh Hazari v. Purushottam

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Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:

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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.

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25. 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

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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

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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.

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