BY AD v. S.SREEKUMAR

Punalur. The appellants are plaintiffs and respondents are defendants in O.S. No.342 of 2010.

2. Heard the learned counsel for the appellants and the learned Government Pleader appearing for the respondents, on admission. Perused the lower court records called for and made available and the verdicts under challenge.

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

4. In this matter, the case of the plaintiffs is that the plaintiffs obtained title over 30 cents of property as per R.S.A. No. 31 of 2024 3 sale deed No.433/1982. Out of which, 2.44 ares of property situated on the western side of Punalur – Kayamkulam road was acquired for widening of Punalur – Poonkunnam road. The plaintiffs assigned the said extent of property in favour of the 1st defendant as per sale deed No.1141/2006 of S.R.O, Pathanapuram. According to the plaintiffs, plaintiffs agreed to demolish a portion of the building situated in

2.44 ares of property covered by sale deed No.1141/2006. But the defendants made an attempt to demolish the entire building situated in the property in excess of the property covered by Sale deed No.1141/2006 and accordingly prohibitory injunction was sought for restraining the same.

5. The 2nd defendant filed written statement and the 1st defendant also adopted the said contentions. The contentions raised are as under: “KSTP has acquired 2.44 square meters of property comprised in survey No. 684/2 which is owned by the plaintiff. The said property was obtained as per sale deed No. 1142/06 of the S.R.O Pathanapuram. It is also admitted that the R.S.A. No. 31 of 2024 4 said property was surveyed and demarcated and survey stones were also installed. Now the defendant suspect that the survey stones might have been shifted and some more land comes within the compound in possession of the plaintiffs. The plaintiffs received compensation of Rs.1,68,011/- for the replacement value of land and Rs.9,19,732/- paid to them is the value of the full structure and all fittings in the property acquired. The total amount paid to the plaintiff was Rs. 10,88,543/-.”

6. The further contention was that, during the month of August, 2020 a portion of the building was removed from the acquired land and the plaintiffs has been retaining the remaining portion agreed to be demolished. Accordingly, the plaintiffs were given notice to dismantle the entire building as agreed and at this juncture, the present suit was filed.

7. The trial court recorded evidence and tried the matter, after addressing rival contentions. PWs 1 to 3 examined and Exts.A1 and A2 marked on the side of the plaintiffs. DW1 examined and Exts.B1 to B10 marked on the R.S.A. No. 31 of 2024 5 side of the defendants. Exts.C1 and C2 series marked as court exhibits.

8. Finally, the trial court decreed the suit and granted the relief of permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property.

9. Though, the learned Munsiff granted relief sought for, on appeal, as per judgment dated 10.10.2023 in A.S. No.15/2019, the learned Sub Judge set aside the judgment of the trial court and allowed the appeal.

10. At the time of admission hearing, the learned counsel for the plaintiffs/appellants zealously argued that, out of the total extent of 30 cents, only 2.44 ares was acquired for widening of the road and the plaintiffs agreed to demolish the building situated in the said portion alone and the plaintiffs never agreed to demolish any portion of the building overlapping in the remaining extent of 30 cents. He also argued that, even though, the Appellate Court relied on Ext.B2 document to hold that the plaintiffs agreed to demolish the entire building, but in Ext.B2 there R.S.A. No. 31 of 2024 6 is no specific mention to the effect that the entire building was agreed to be demolished.

11. According to the learned counsel for the plaintiffs, since 2.44 ares of property alone was acquired for the purpose of widening of the road and surrendered by the plaintiffs, demolition of the property situated in the remaining extent of property is not legally permissible. Therefore, the first Appellate Court went wrong in refusing the prohibitory injunction which was granted by the trial court. Therefore, this second appeal requires admission by formulating substantial questions of law.

12. But the learned counsel for the plaintiffs failed to substantiate any substantial question of law warranting admission of this appeal.

13. Whereas, the learned Government Pleader given thrust on Exts.B1 to B7 documents and submitted that, even though 2.44 ares of property alone was acquired for the purpose of widening of the road, the plaintiffs agreed to R.S.A. No. 31 of 2024 7 demolish the entire building to avoid obstruction to the use of the road and it was so stated in Ext.B7 document. It is also submitted that, in view of the consent given by the plaintiffs to demolish the entire building, compensation was granted under two heads, viz. Rs.1,68,011/- is the amount given towards land value and Rs.9,19,732/- was paid towards the value of the full structure and all fittings in the property. Accordingly, the total amount of compensation paid was Rs.10,88,543/-. The learned Government Pleader further submitted that, since the plaintiffs received compensation on undertaking to demolish the entire building facilitating effective use of the road without hindrance, the plaintiffs are bound to demolish the entire building as agreed.

14. In this matter, Exts.B1 to B10 marked on the side of the defendants and evidence given by DW1 assumes significance, where the plaintiffs’ contention is that the portion of the building covered by 2.44 ares of property alone was agreed to be demolished. Ext.B1 is the payment voucher acknowledgment of direct purchase dated R.S.A. No. 31 of 2024 8

09.05.2006. Sri.N.Vijayan, the 1st plaintiff received Rs.9,18,444/- after deducting income tax at the rate of

11.22%, revenue and sale tax from the total amount of Rs.10,88,543/-. Out of which, Rs.1,68,011/- is shown as replacement value of the land and Rs.9,19,732/- is shown as the value of structures. In Ext.B2 it has been admitted by Sri. N. Vijayann that he would demolish the building in the property situated in Survey No.684/2 of Piravanthoor Village and Ext.B2 would in no way suggest that Sri. N.Vijayan consented to demolish only portion of the building situated in 2.44 ares of the property. Therefore, the consent is in general to demolish the entire building. Ext.B6 in this case is the social impact assessment report. As per Ext.B6, it has been categorically stated that the area acquired for the project is 244M2. Further, it has been stated that, the structure involved is 180M2 including residential plot, compound wall, well and chimney. It is stated therein that the affected area is 12M2 that includes 2M wall and 10M2 building. In the last portion of Ext.B6, the plaintiffs consented to demolish the entire structure for the R.S.A. No. 31 of 2024 9 value.

16. In the case at hand, DW1 is the Executive Engineer, KSTP and she had given evidence in support of Exts.B1 to B7 and the candid evidence given by DW1 is that the plaintiffs agreed to demolish the entire building. When a question was asked as to whether any property in excess of one covered by Ext.A2 was given to KSTP, the answer given by DW1 was that as per the direction of the plaintiffs, value for the entire building was given.

17. It is argued by the learned counsel for the plaintiffs that no property in excess of Ext.A2 was given to the Government and therefore there is no justification to demolish the property situated in the remaining extent of land owned by the plaintiffs. Thus, the first Appellate Court went wrong in refusing the prohibitory injunction.

18. As per Ext.A2, it is clear that the plaintiffs transferred of 2.44 ares of property out of 12.14 ares of property in favour of the 1st defendant. But, apart from executing Ext.A2 as per Ext.B1, B3, B5 and B7, the plaintiffs agreed to demolish the entire building situated in the total R.S.A. No. 31 of 2024 10 extent of property of 30 cent (12.14 ares). That apart, the plaintiffs received compensation for the entire building on undertaking to demolish the entire building. Therefore, the plaintiffs who received compensation for demolition of the entire building and agreed to demolish the building cannot be allowed to take a U-turn so as to retain the building. Therefore, prohibitory injunction to retain the building and avoid demolition of the building, for which value was received by the plaintiffs, could not succeed. Accordingly, the first Appellate Court rightly refused grant of prohibitory injunction by setting aside the decree and judgment of the trial court, granted on wrong appreciation of evidence.

19. 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, R.S.A. No. 31 of 2024 11 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.”

20. 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 R.S.A. No. 31 of 2024 12 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.

21. 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].

22. In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 (5) R.S.A. No. 31 of 2024 13 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.

23. 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, R.S.A. No. 31 of 2024 14 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.

24. In the instant case, it appears that the decree and judgment of 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.

25. 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, R.S.A. No. 31 of 2024 15 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.

26. Accordingly, this regular second appeal stands dismissed, without being admitted, as indicated above. All interlocutory applications pending in this regular second appeal stand dismissed. Sd/- A. BADHARUDEEN JUDGE SK