BY AD vs SRI.M.J.THOMAS (EXPIRED)

LEELAMMA AGED 69 YEARS, W/O LATE. C.T BALAKRISHNAN PILLAI,RESIDING AT NEDUMPELLIL HOUSE, THEERTHAPADAPURAM,VAZHOOR, CHENGANASSERY. SINDHUMOL AGED 43 YEARS, D/O LATE BALAKRISHNA PILLAIAND W/O SAJEEV, RESIDING AT NEDUMPELLIL HOUSE,THEERTHAPADAPURAM, VAZHOOR, CHENGANASSERY. SAJEEV AGED 48 YEARS, S/O KRISHNANKUTTY NAIR, RESIDING ATNEDUMPALLIL HOUSE, THEERTHAPADAMPURAM, VAZHOOR,CHENGANASSERY. BINDUMOL AGED 46 YEARS, D/O LATE. C.T BALAKRISHNAN PILLAI,RESIDING AT NEDUMPELLIL HOUSE, THEERTHAPADAPURAM,VAZHOOR, CHENGANASSERY. BY ADV SRI.V.B.PREMACHANDRAN RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 M.P.MANMADHAN NAIR (DIED - LEGAL REPRESENTATIVES IMPLEADED) AGED 67 YEARS, RESIDING AT KIZHAKKEDATHU HOUSE,THEERTHAPADAPURAM, VAZHOOR, CHANGANASSERY,KOTTAYAM-686101. R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 4 2 3 4 5 6 PARASANNAKUMAR AGED ABOUT 53 YEARS, W/O MADMADHAN NAIR, RESIDING AT KIZHAKKEDATHU HOUSE, THEERTHAPADAPURAM,VAZHOOR, CHANGANASSERY, KOTTAYAM, PIN-686101 VIJAYAKUMARAN NAIR AGED ABOUT 67 YEARS, RESIDING AT VIJAYASADANAM,THEETHEPADAPURAM, VAZHOOR, CHANGANASSERY, KOTTAYAM, PIN-686101 MEMBERS OF THE GENERAL PUBLIC AT WORD OF VAZHOOR GRAMA PANCHAYAT REPRESENTED BY RESPONDENTS 1 TO 3. ADDL.R5 SUDHEESH M. NAIR, S/O.LATE M.P.MANMADHAN NAIR, RESIDING AT KIZHAKKEDATHU HOUSE,THEERTHAPADAPURAM, VAZHOOR, CHANGANASSERY,KOTTAYAM,PIN-686 505. ADDL.R6 SUVARNA M. NAIR, S/O.LATE M.P.MANMADHAN NAIR,RESIDING AT KIZHAKKEDATHU HOUSE,THEERTHAPADAPURAM, VAZHOOR, CHANGANASSERY,KOTTAYAM,PIN-686 505. (LEGAL HEIRS OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 5 AND 6 AS PER ORDER DATED 30.05.2023 IN IA.1/2022) ADDL R5 & R6 BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB(K/1144/2001) REXY ELIZABETH THOMAS(K/635/1995) ATHUL V. VADAKKEDOM(K/003544/2022) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

11.01.2024 ALONG WITH R.S.A.NO.1300 OF 2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 5 JUDGMENT Dated this the 11th day of January, 2024 R.S.A. No.1300 of 2017 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.205 of 2011 dated 31.07.2014 on the files of the Court of the Additional District Judge-I, Kottayam arose from the decree and judgment in O.S. No.49 of 2009 dated 14.07.2011 on the files of the Munsiff Court, Kanjirappally. The appellants herein are the defendants and respondents are the plaintiff in O.S. No.49/2009 and his legal heirs.

2. R.S.A. No.99 of 2018 has been filed under order XLII Rule 1 read with Section 100 of CPC, challenging the decree and judgment in A.S. No.206 of 2011 dated

31.07.2014 on the files of the Court of the Additional District Judge-I, Kottayam arose from the decree and judgment in O.S. No.113 of 2009 dated 14.07.2011 on the R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 6 files of the Munsiff Court, Kanjirappally. The appellants herein are the plaintiffs and respondents are the defendants in O.S. No.113/2009 and legal heirs of the 1st defendant.

3. Heard the learned counsel for appellants as well as the learned counsel appearing for respondents in detail, on admission. Perused the relevant documents.

4. I shall refer the parties in these appeals as “Smt.Leelamma and others” and “Sri.M.P. Manmadhan Nair and others” for convenience.

5. In this matter, O.S. No.49/2009 was instituted by Sri.M.P. Manmadhan Nair against Smt.Leelamma and others and the contention raised therein was that, Sri.M.P.Manmadhan Nair has been using plaint item No.3 pathway, having width of 4 ½ feet, starting from the Panchayat road and running towards south through the property of Polackal Joy in Resurvey No.13/2 and item No.2. The portion of the pathway lying on item No.2 and the property in Resurvey No.13/2 is scheduled as item No.3. According to Sri.M.P. Manmadhan Nair, he has been using R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 7 plaint item No.3 pathway in continuation of his predecessors-in-interest as of right over a period of 50 years and thereby perfected right of easement by prescription over the same. When, he apprehended trespass and reduction as regards the width of the pathway, O.S. No.49/2009 seeking prohibitory injunction was filed.

6. Thereafter, O.S. No.113/2009 was filed by Smt.Leelamma and others arraying Sri.M.P. Manmadhan Nair and others as parties, seeking prohibitory injunction against trespass upon plaint schedule item No.1 property and further widening of plaint schedule item No.2 therein through the plaintiffs’ property.

7. Smt.Leelamma and others resisted the suit O.S. No.49/2009 denying right of easement claimed over plaint item No.3 property and contested the suit O.S. No.113/2009, to prevent widening and extension of plaint schedule item No.2 pathway, excluding plaint schedule item No.3 in O.S. No.49/2009.

8. The trial court recorded evidence after having joint trial of both matters together, treating O.S. R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 8 No.49/2009 as the leading case. PWs 1 to 3 examined and Exts.A1 and A2 marked on the side of the plaintiff. DWs 1 to 3 examined and Exts.B1 to B5 marked on the side of the defendants. Exts.C1 to C3 series marked as Court exhibits.

9. On evaluation of evidence, the trial court found that the plaintiff in O.S. No.49/2009 established right of easement by prescription over plaint item No.3 pathway. The trial court also found that the plaintiffs in O.S. No.113/2009 have failed to establish entitlement of injunction as prayed for. Accordingly, the trial court decreed O.S. No.49/2009 granting permanent prohibitory injunction in favour of Sri.M.P. Manmadhan Nair while dismissing O.S. No. 113/2009.

10. The common verdict of the trial court was assailed before the Appellate Court and the Appellate Court as per the common judgment dated 31.07.2014 in A.S. Nos.205 and 206 of 2011, dismissed the appeals and confirmed the finding of the trial court.

11. The learned counsel for Smt.Leelamma and others submitted that, since the trial court as well as the R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 9 Appellate Court granted prohibitory injunction in favour of Sri.M.P. Manmadhan Nair, confining to plaint schedule item No.3 pathway in O.S. No.49/2009, having an extent of 4 ½ feet at a length of 8.55 metres, Smt.Leelamma and others would be deprived of use of 5 cents of property out of 25 cents. He also submitted that in order to enjoy plaint schedule property in O.S. No. 49/2009, 3 feet width pathway alone is sufficient and Smt.Leelamma and others are ready to provide the same. He further submitted that, in that view of the matter, the decrees and judgments impugned are to be interfered by this Court.

12. Countering this argument, the learned counsel appearing for legal heirs of Sri.M.P. Manmadhan Nair and others submitted that, the usage of plaint item No.3 pathway as identified by the Commissioner as per Ext.C1 series was established by the evidence of PWs 1 to 3 and taking note of the said fact, the trial court decreed O.S. No.49/2009 and dismissed O.S. No.113/2009. He also submitted that, since the right claimed by Sri.M.P. Manmadhan Nair in O.S. No.49/2009 has been established, R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 10 the trial court as well as the Appellate Court were justified in granting prohibitory injunction and the said concurrent verdict do not require any interference by admitting these regular second appeals.

13. On perusal of the judgments under challenge, it is discernible that the dispute in these cases is mainly centered as regards to the right claimed by Sri.M.P. Manmadhan Nair in respect of plaint schedule item No.3 pathway, having a width of 4 ½ feet, as identified by the Commissioner. The evidence of PWs 1 to 3 fully supported the right claimed by M.P. Manmadhan Nair.

14. According to the learned counsel Smt.Leelamma and others, there is an alternative pathway suitable for access to plaint schedule item Nos. 1 and 2 properties in O.S. No.49/2009 and the courts below failed to take note of that fact.

15. While addressing this argument, it is to be observed that, when claim by way of easement by prescription is asserted, availability of an alternative pathway would not defeat the said right, once the R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 11 prescriptive right is properly pleaded and proved. In the case at hand, the Commissioner rightly located existence of the pathway and Sri.M.P. Manmadhan Nair proved the same in tune with the mandate of Section 15 of the Easement Act, 1882. Therefore, the trial court rightly granted decree in favour of Sri.M.P. Manmadhan Nair. The appellate Court also concurred the finding of the trial court on re-appreciation of evidence. Accordingly, the concurrent verdicts rendered by the trial court and Appellate Court do not require any interference at the hands of this Court.

16. Thus, it appears that no substantial question of law is available in this matter to be formulated to maintain and admit these regular second appeals. 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, the Court may direct that the second appeal be R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 12 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.”

17. 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 does not involve such question. Proviso stipulates that R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 13 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.

18. 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], the Apex Court held that: "After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 14 of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence" "It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 15 S.100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact." "If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 16 Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal." When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 17 Biswanath Ghosh v. Gobinda Ghose, AIR 2014 SC 152. Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of S. 100 of the CPC.

19. In a latest decision of the Apex Court reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC] Government of Kerala v. Joseph, it was held 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. We may only refer to Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench) wherein this Court observed as follows: “12. The phrase “substantial question of law”, as occurring in the amended S.100 is not defined in the Code. The word substantial, as qualifying “question of law”, R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 18 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.

20. 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 R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 19 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 CPC must be complied to admit and maintain a second appeal.

21. In these cases, it appears that the verdicts entered into by the Courts below, based on the facts and evidence are found to be in order. Therefore, the same do not require any interference at the hands of this Court.

22. Therefore, no substantial question of law arises for consideration so as to admit these second appeals. It is the well settled law that a second appeal involving no R.S.A. No. 1300 of 2017 & R.S.A. No. 99 of 2018 20 substantial question of law cannot be admitted. Therefore, the decrees and judgments under challenge do not require any interference and no substantial question of law to be formulated to adjudicate in these regular second appeals.

23. Accordingly, these regular second appeals stand dismissed, without being admitted, as indicated above. All interlocutory applications also stand dismissed and the interim order of status quo stands vacated. SK Sd/- A. BADHARUDEEN JUDGE