Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Antony Frederic Baiju S/o Peter – Appellant
Versus
Titus Shaiju S/o Peter – Respondent
R.S.A. No. 132 of 2022
Decided On : 17-10-2023
Code of Civil Procedure, 1908 - Section 100, 109, Order XLII Rule 2 - Constitution of India, 1950 - Article 133(1)(a) - Second Appeal - Property - Mandatory injunction - Second Appeal arises out of decree and judgment - Suit was filed seeking fixation of southern boundary of A schedule with that of defendant; for mandatory injunction directing defendant to vacate B schedule building - In order to admit and maintain Second Appeal, substantial question of law necessarily to be formulated by High Court within mandate of Order XLII Rule 2 Read with Section 100 of C.P.C.
Findings of the Court:
Legal position is no more res-integra on point that in order to admit and maintain a second appeal under Section 100 of C.P.C. Court shall formulate substantial questions of law, and said procedure is mandatory - Although phrase ‘substantial question of law’ is not defined in Code ‘substantial question of law’ means; of having substance, essential, real, of sound worth, important or considerable - Legislature has chosen not to qualify scope of “substantial question of law” by suffixing words “of general importance” as has been done in many other provisions such as S.109 of Code or Art. 133(1)(a) of Constitution - 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 conditions mentioned in Section 100 read with Order XLII Rule 2 of C.P.C. must be complied to admit and maintain a second appeal.
Result: Appeal dismissed.
ORDER :
1. This Regular Second Appeal arises out of decree and judgment in A.S. No. 25/2018 dated 08.01.2021 on the files of the Sub Court, Kochi, which emerged from decree and judgment in O.S. No. 465/2015 dated 31.01.2018 on the files of the Munsiff Court, Kochi.
2. Heard the learned Senior Advocate Sri T. Krishananunni appearing for the defendant and Advocate Sri G. Krishnakumar, appearing for the respondent, on admission.
3. Perused the judgments under challenge and the available materials.
4. The parties in this appeal will be referred hereafter as ‘plaintiff’ and ‘defendant’ relegating their status before the trial court.
5. Plaintiff’s case in nutshell is as under: According to the plaintiff the plaint A schedule property having an extent of 2.33 Ares along with one shop room numbered as 4/351 and a shop room with residential portion numbered as 4/352 were given in favour of the plaintiff by his father, Sri Peter, as per settlement deed No. 1512/2012. It was contended that father obtained property having an extent of 10.53 Ares as per partition deed No. 777/1963 and he constructed the above shop room and building. Thereafter, the father divided the property among the plaintiff, defendant, their mother and brother Saju. The western portion to an extent of 3.44 Ares was given to Saju. Eastern portion with residential building to an extent of 2.43 Ares was given to the mother. The remaining property on the eastern portion was divided into two. Out of which, the southern portion having an extent of 2.33 Ares was given to the defendant and the northern portion of the plaint A schedule was given to the plaintiff. The further contention was that thereafter the plaintiff obtained title over plaint A schedule property on the basis of settlement deed No. 1512/2012. The defendant, who opposed the said allotment and execution of settlement deed in favour of the plaintiff, filed O.S. No. 133/2015 to cancel the title deed of the plaintiff. Plaint B schedule item is building No. 4/351, which was given by the father to the defendant as a licensee and the said licence continued even after execution of the settlement deed in favour of the plaintiff. Thereafter, the plaintiff terminated the licence by issuing notice. Since the defendant failed to vacate the building, the present Suit was filed seeking fixation of the southern boundary of A schedule with that of the defendant; for mandatory injunction directing the defendant to vacate the B schedule building and also claiming Rs.1,000/- per month as damages for use and occupation of the same by the defendant.
6. The defendant opposed the contention raised by the plaintiff and contended that the Suit was one filed to counterblast O.S. 133/2015 filed by the defendant to cancel the title deed of the plaintiff and other deeds executed by the father. According to the defendant, the plaintiff managed to execute settlement deed in his favour grabbing property earmarked for the defendant. It was contended that plaint A schedule was assigned to the defendant by the father and also he had been using the same for about 20 years. Accordingly, defendant prayed for dismissal of the suit.
7. The trial court tried the matter.
8. PW-1 and PW-2 examined and Exts.A1 to A3 were marked on the side of the plaintiff. One witness examined as DW-1 on the part of the defendant. Ext.C1 series also marked. The trial court addressed the issues and decreed the suit as under:
2. By a mandatory injunction, defendant is directed to vacate Plaint B schedule room within two months, failing which, plaintiff may obtain vacant possession through the process of the court.
3. Defendant is directed to pay the Plaintiff an amount of Rs.1000/- (Rupees One Thousand only) per month as damages for use and occupation from the date of suit, till realisation.
4. Defendant is restrained by a permanent prohibitory injunction from trespassing
A second appeal under Section 100 of the CPC requires the formulation of a substantial question of law; otherwise, it cannot be maintained.
Owner of immovable property on termination of license is entitled to maintain suit for mandatory injunction against licensee to vacate property.
In injunction suits, the plaintiff must establish possession and title; revenue records are not conclusive proof of ownership.
The court affirmed that in seeking an injunction over immovable property, examination of title is necessary if challenged by the opposing party.
Decreed mandatory injunction – Recovery of Possession – Appellant should not be denied relief merely because he had couched plaint in form of a suit for mandatory injunction - Petitioner entitled to ....
A suit for permanent injunction is not maintainable when the defendant raises a genuine dispute regarding the plaintiff's title, and the plaintiff fails to prove lawful possession.
The court established that an arrangement characterized as a lease cannot be contested as a license, impacting the right to recover possession, which necessitates a suit for recovery rather than a ma....
The main legal point established in the judgment is that licensees are bound to vacate the property upon termination of the license, and the absence of a prayer for partition is not fatal to the plai....
Mandatory injunctions require clear evidence of possession rights; mere claims of permissive possession undermined by admissions establishing tenant status.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
