Second appeal against a final decree of partition in which the Commissioner excluded 24 cent occupied by a tank and 3 cent acquired for road widening before allotting shares. Finding the final decree faithful to the preliminary decree and no substantial question of law involved, the High Court dismissed the appeal at 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. 28 OF 2024
AGAINST THE DECREE AND JUDGMENT DATED 04.10.2023 IN
A.S.NO.103/2021 ON THE FILES OF THE COURT OF THE DISTRICT JUDGE,
PALAKKAD AROSE FROM THE ORDER DATED 23.01.2020 IN FDIA
NO.1349/2006 IN O.S.NO.141/2004 ON THE FILES OF THE MUNSIFF COURT,
CHITTUR
APPELLANT/APPELLANT/RESPONDENT NO.1:
KRISHNANUNNI
AGED 72 YEARS
S/O KARUPPAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU,
MARIKOLUMBU, KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD
DISTRICT, PIN - 678505
BY ADVS.
RAJESH SIVARAMANKUTTY
MAYA C.P.
K.V.ANTONY
VIJINA K.
ARUL MURALIDHARAN
RESPONDENTS/RESPONDENTS/SUPPLEMENTAL PETITIONER NOS.2 TO 5 &
RESPONDENT NOS.2 TO 14:
1 SAROJINI
AGED 59 YEARS
SAROJINI W/O LATE HARIHARAN, RESIDING AT MARIKOLUMBU,
KOODALLUR AMSOM, PALLASENA VILLAGE, CHITTUR TALUK,
PALAKKAD DISTRICT, PIN - 678505
2 SHEEJA AGED 36 YEARS W/O KUTTAPPAN, RESIDING AT PANAMADAM, THEKKETHARA, PUDUSHERRY VILLAGE, PALAKKAD DISTRICT, PIN - 6787033 SHEETHU AGED 33 YEARS W/O RADHAKRISHNAN, RESIDING AT PUTHAN VEEDU, KAIPANCHERY, NEMMARA VILLAGE, PALAKKAD TALUK, PALAKKAD DISTRICT, PIN - 678508R.S.A. No. 28 of 2024
2
4 SUBASH
AGED 34 YEARS
S/O LATE HARIHARAN, RESIDING AT PULIKAL VEEDU,
KOODALLUR AMSOM, PALLASENA VILLAGE, CHITTUR TALUK,
PALAKKAD, PIN - 678505
5 VELAYUDHAN EZHUTHACHAN AGED 79 YEARSS/O CHATHU EZHUTHACHAN, RESIDING AT PADINJARE VEEDU,
MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD,
PIN - 678505
6 SANKARA NARAYANAN EZHUTHACHAN AGED 69 YEARSS/O SANKARA EZHUTHACHAN, RESIDING AT PADINJARE VEEDU,
MARIKOLUMBU KOODALLUR AMSOM,CHITTUR TALUK, PALAKKAD,
PIN - 678505
7 SANKARA NARAYANAN EXHUTHACHAN AGED 83 YEARSS/O ACHUTHAN EZHUTHACHAN, RESIDING AT PADINJARE
VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK,
PALAKKAD, PIN - 678505
8 OMANA AGED 69 YEARSW/O KRISHNAN EZHUTHACHAN, RESIDING AT PADINJARE
VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK,
PALAKKAD, PIN - 678505
9 RAVEENDRAN AGED 52 YEARSS/O KRISHNAN EZHUTHACHAN, RESIDING AT PADINJARE
VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK,
PALAKKAD, PIN - 678505
10 SUDHAKARAN AGED 46 YEARS S/O KRISHNAN EZHUTHACHAN, PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 67850511 SURESH AGED 40 YEARS S/O KRISHNAN EZHUTHACHAN, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 67850512 GIRISH AGED 31 YEARSS/O OMANA, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU
KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD,
PIN - 678505
R.S.A. No. 28 of 2024
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13PADMINI
AGED 72 YEARS
W/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE
VEEDU, MARIKOLUMBU KOODALLUR AMSOM,CHITTUR TALUK,
PALAKKAD, PIN - 678505
14 PREETHI AGED 47 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 67850515 DILLI AGED 49 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 67850516 MINI AGED 42 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM, CHITTUR TALUK, PALAKKAD, PIN - 67850517 KRIPA AGED 39 YEARS D/O KRISHNANKUTTY MASTER, RESIDING AT PADINJARE VEEDU, MARIKOLUMBU KOODALLUR AMSOM,CHITTUR TALUK, PALAKKAD, PIN - 678505THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 28 of 2024
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JUDGMENT
Dated this the 29th day of January, 2024
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.103 of 2021 dated 04.10.2023 on the files of the Court of the District Judge, Palakkad whereby the learned District Judge confirmed the order in F.D.I.A. No.1349 of 2006 in O.S. No.141 of 2004 dated 23.01.2020 on the files of the Munsiff Court, Chittur. The appellant herein is the 1st defendant and respondents are supplemental petitioners 2 to 5 and defendants 2 to 14 in O.S. No.141 of 2004.
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Exts.C1 and C1(a).
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considered. The learned first Appellate Judge found that the total extent of the plaint schedule property is only 70 cent. In the schedule itself, it has been stated that out of 70 cent, 30 cent is the tank portion, 20 cent is the Paramba, 15 cent is the Nilam and 5 cent has been acquired for the road. The Appellate Court also appraised Exts.C1 and C1(a) report and survey plan, whereby the Commissioner excluded 24 cent of property found as tank and also 3 cent acquired for the road and the remaining property alone considered for effecting partition.
R.S.A. No. 28 of 2024
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objection filed by the parties and the first Appellate Court rightly appreciated the contentions and concurred the finding of the trial court.
“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
R.S.A. No. 28 of 2024
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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.”
11. 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 satisf i ed 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 satisf i ed 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
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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 satisf i ed that the case involves such question.
12. 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].
13. 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
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(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.
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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.
as by 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.
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any interference and no substantial question of law to be formulated to adjudicate in this regular second appeal.
dismissed, without being admitted, as indicated above.
All all interlocutory applications pending in this
regular second appeal stand dismissed.
Sd/-
A. BADHARUDEEN
JUDGE
SK
2 issues framed by the court
Whether the final decree allotting shares after excluding the tank area measured by the Commissioner conforms to the preliminary decree.
Whether any substantial question of law arises to admit the regular second appeal.
Colour shows how this judgement treated each authority
Nazir Mohamed v. J. Kamala and OthersRelied on¶12
[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168] · Who else cites this
Government of Kerala v. JosephRelied on¶13
[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]
3 provisions across 1 enactments
Krishnanunni
Sarojini
Sheeja
Sheethu
Subash
Velayudhan Ezhuthachan
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court