Cross-appeals over boundary fixation, recovery of possession and easement by prescription between adjoining owners were jointly tried below; both trial court decrees were upheld on appeal. The High Court found no substantial question of law arose and dismissed both second appeals at the admission stage.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 29TH DAY OF JANUARY 2024 / 9TH MAGHA, 1945
RSA NO. 101 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 16.02.2016 IN OS 1422/2004 OF III ADDITIONAL MUNSIFF COURT, ERNAKULAM
(RENT CONTROL)
AGAINST THE DECREE AND JUDGMENT DATED 30.06.2022 IN AS
95/2016 OF ADDITIONAL DISTRICT COURT- VIII, ERNAKULAM
APPELLANT/APPELLANT/PLAINTIFF:
JOSEPH K.X. AGED 62 YEARS S/O. XAVIER, KOCHUVEETIL, PERUMANNOR P.O, ERNAKULAM VILLAGE, KANAYANNOOR TALUK, KOCHI-682 015.
BY ADVS. AMAL GEORGE MANU GEORGE KURUVILLA PARAMESWARAN S.D.
RESPONDENTS/RESPONDENTS/DEFENDANTS
1 K.P.MICHAEL AGED 68 YEARS
S/O. PETER, KOCHUVEETTIL, PERUMANNOR P.O, ERNAKULAM VILLAGE, KANAYANNOR TALUK, KOCHI-682 015.
2 HARSH KUMAR AGED 64 YEARS
S/O K.N SADASIVAN, KRISHNA KRIPA, KADAVANTHARA DESOM, ELAMKULAM VILLAGE, PIN-682 020.
BY ADV SREEJITH S. NAIR FOR R1 AND R2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024 ALONG WITH RSA NO.102/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 29TH DAY OF JANUARY 2024 / 9TH MAGHA, 1945
RSA NO. 102 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 16.01.2016 IN OS 1055/2005 OF III ADDITIONAL MUNSIFF COURT, ERNAKULAM
(RENT CONTROL)
AGAINST THE DECREE AND JUDGMENT DATED 30.06.2012 IN AS 100/2016 OF ADDITIONAL DISTRICT COURT-VIII, ERNAKULAM APPELLANT/APPELLANT/DEFENDANT:
JOSEPH K.X. AGED 56 YEARS S/O. XAVIER, KOCHUVEETTIL, PERUMANOOR P.O., KOCHI-682015, ERNAKULAM VILLAGE IN KANAYANNOOR TALUK.
BY ADVS. AMAL GEORGE MANU GEORGE KURUVILLA(K/493/2006) PARAMESWARAN S.D.
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 K.P.MICHAEL S/O. PETER, AGED 68 YEARS, KOCHUVEETTIL, PERUMANOOR P.O., ERNAKULAM VILLAGE, KANAYANNOOR TALUK, KOCHI-682015.
2 PHILOMINA PETER, AGED 95 YEARS W/O. PETER, KOCHUVEETTIL, PERUMANOOR P.O., ERNAKULAM VILLAGE IN KANAYANNOOR TALUK, KOCHI-682015.
3 ALBI, AGED 75 YEARS
S/O. PETER, KOCHUVEETTIL, NEAR COIR BOARD,
RSA NOs. 101 & 102 OF 2023
3
KALAVOOR P.O., ALLEPPY, PIN-688522.
4 TRESSIAMMA, AGED 73 YEARS D/O. PETER, KOCHUVEETTIL, PERUMANOOR P.O., ERNAKULAM VILLAGE, KANAYANNOOR TALUK, KOCHI-682015.
5 THOMAS, AGED 71 YEARS S/O. PETER, KOCHUVEETTIL HOUSE, THEVARA, KOCHI-682013.
6 RAJEENA, AGED 67 YEARS KOCHUVEETTIL, PERUMANOOR P.O., ERNAKULAM VILLAGE, KANAYANNOOR TALUK, KOCHI-682015.
7 FRANCIS, AGED 65 YEARS S/O. PETER, KOCHUVEETTIL, NEAR COIR BOARD, KALAVOOR P.O., ALLEPPEY, PIN-688522.
8 HARSH KUMAR, AGED 64 YEARS S/O. K.N.SADASIVAN, CONDUCTOR, KRISHNA KRIPA, KADAVANTHRA DESOM, ELAMKULAM VILLAGE, PIN-682020.
BY ADV SREEJITH S. NAIR FOR R1, R3 TO R5, R7 AND R8
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024 ALONG WITH RSA NO.101/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NOs. 101 & 102 OF 2023
4
JUDGMENT
Dated this the 29th day of January, 2024
These regular second appeals have been filed under
Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short).
the files of the Additional Munsiff's Court-III, Ernakulam, is the appellant in RSA No.101/2023. The respondents herein are the defendants in the above Suit.
Joseph, who is the defendant in O.S.No.1055/2005 on the
files of the Additional Munsiff Court-III, Ernakulam and the said suit had been filed by the respondents in this second appeal as plaintiffs.
RSA NOs. 101 & 102 OF 2023 5
appeals as 'Joseph' and 'Michael' for convenience.
RSA NOs. 101 & 102 OF 2023
6
easement by prescription over plaint 'D' schedule pathway
and consequential injunction.
marked. DW1 and DW2 examined and Exts.B1 to B3 were
marked. Ext.C1 and Ext.C2 series were marked.
and allowed O.S.No.1055/2005 as under:
“In the result:
OS No.1422/2004
1. The suit stands dismissed.
2. The parties shall bear their respective costs.
OS No.1055/2005
The suit decreed as follows:
1. The boundary between the plaint 'A' schedule which shall be inclusive of the plaint 'B' schedule and plaint 'C' schedule shall be fixed as
RSA NOs. 101 & 102 OF 2023
7
shown in exhibit C2(a) sketch.
2. The eighth plaintiff shall be entitled to recover possession of plaint 'B' schedule from the defendant and the defendant is directed to put the eighth plaintiff in possession of the plaint 'B' schedule property after removing the structures therein at the defendant's expense within thirty days failing which the eighth plaintiff shall be entitled to execute this decree through the process of law and at the expense of the defendant.
3. It is hereby declared that the eighth plaintiff shall have the right of way through the plaint 'D' schedule property.
4. The defendant is restrained by a decree of permanent prohibitory injunction to the effect that he shall not in any manner restrain the eighth plaintiff from using the plaint 'D' schedule pathway to access the plaint 'A' schedule of which the 'B' schedule is also held to be a part”
filed challenging the said common verdict, the appellate court also confirmed the finding of the trial court.
RSA NOs. 101 & 102 OF 2023 8
are insufficient to grant the relief. He also submitted that the father of Joseph purchased the property only in the year 1972 and there exists no way as contended. He also pointed out that, as per Ext.C2(a) plan, the portion of plaint 'D' schedule pathway running through plaint 'C' schedule (the property of Joseph) is reported to be one, where a septic tank and banana plantains are situated as per Ext.C2 report.
RSA NOs. 101 & 102 OF 2023 9
Accordingly, the entire extent of property obtained as per Ext.A1 by Michael and another is located as 5.75 cents. The Commissioner also located 5.500 cents of property described as plaint 'B' schedule in Ext.A1 as plot C, having an extent of 5.235 cents. C1 plot having an extent of 0.110 cent is located as in possession of a third party. Similarly, 0.155 cent is the property identified as the portion of D schedule way where Michael and another claimed right of easement by prescription. Accordingly, 5.500 cents of property of the defendant also was located.
RSA NOs. 101 & 102 OF 2023
10
schedule, no other way was available to Joseph.
'A' and 'C' schedule property, separating A plot and C plot, is concerned, the same is tallying with the title deeds. Similarly, plaint 'D' schedule also is located and a portion of the same having an extent of 0.155 cent is located as the portion of D schedule.
way to Michael. In addition to that, none of the parties never put up any contention to the effect that apart from the narration in Ext.A1 title document, any property in excess available in any manner. Since Ext.C2(a) clearly located the lie of the properties in tune with the narration in Ext.A1 and specified the area in the possession of Michael and Joseph. It appears that the trial court rightly granted the decree. The appellate court, on re-appreciation, also concurred with the
RSA NOs. 101 & 102 OF 2023
11
same rightly.
“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.”
RSA NOs. 101 & 102 OF 2023 12
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.
13
RSA NOs. 101 & 102 OF 2023
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] .
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.
point that in order to admit and maintain a second appeal
RSA NOs. 101 & 102 OF 2023 14
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
RSA NOs. 101 & 102 OF 2023
15
a second appeal.
of law arises in this matter to be decided by admitting this appeal.
All interlocutory applications pending in these second appeals, stand dismissed.
Registry shall inform this matter to the trial court as well
as the appellate court, forthwith.
Sd/A. BADHARUDEEN JUDGE
nkr
2 issues framed by the court
Whether the second appeals involved a substantial question of law warranting admission under Section 100 CPC.
Whether the pleadings and evidence sufficed to sustain the decree fixing boundary, granting possession and easement right.
Colour shows how this judgement treated each authority
Nazir Mohamed v. J. Kamala and OthersRelied on¶20
[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] · Who else cites this
Kondiba Dagadu Kadam v. Savitribai Sopan GujarReferred
[(1999) 3 SCC 722] · Who else cites this
Government of Kerala v. JosephRelied on¶21
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]
Santosh Hazari v. Purushottam TiwariReferred
[2001 (3) SCC 179] · Who else cites this
2 provisions across 1 enactments
Joseph K.X.
K.P. Michael
Harsh Kumar
Philomina Peter
Albi
Tressiamma
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
