Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
A.M. Aboobacker - Petitioner
Versus
Sumathi, D/O. Vironi Thevan and Ors. – Respondents
RSA NO. 634 OF 2023
Decided On : 06-12-2023
Code of Civil Procedure - Section 100 - Ext.A5, Order II Rule 2 of the C.P.C. - The court discussed the applicability of Order II Rule 2 of the C.P.C. and the legal principles established in the case of Dalip Singh v. Mehar Singh Rathee and Others. The court found that the bar under Order II Rule 2 should have been pleaded and proved, and since it was not raised in the written statement and no issue was framed on the point, the plea could not be considered. The court also emphasized the mandatory requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the C.P.C.
Fact of the Case:
The suit was filed by the plaintiffs to declare a sale deed as not binding on them and to recover possession of the property. The 7th defendant claimed absolute title to the property covered by the sale deed. The trial court and the appellate court concurred that the sale deed was not binding on the plaintiffs and granted the decree in their favor.
Finding of the Court:
The court found that the bar under Order II Rule 2 should have been pleaded and proved, and since it was not raised in the written statement and no issue was framed on the point, the plea could not be considered. The court also dismissed the appeal as it did not raise any substantial question of law warranting admission of the second appeal.
Issues: The issues involved the applicability of Order II Rule 2 of the C.P.C. and the requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the C.P.C.
Ratio Decidendi: The court emphasized the mandatory requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the C.P.C. It also established that the bar under Order II Rule 2 should have been pleaded and proved to be considered by the court.
Final Decision: The appeal was found to be meritless and dismissed without being admitted. All interlocutory applications pending in the second appeal were also dismissed.
JUDGMENT :
This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in A.S.No.66/2018, dated 14.7.2023 on the files of the Additional District Court -VII, Ernakulam, arose out of the judgment and decree in O.S.No.844/2009, dated 16.2.2018 on the files of the Sub Court, Ernakulam.
2. Heard the learned counsel for the appellant, who is the 7th defendant in the above suit as well as the learned counsel for the respondents 1 and 2, on admission. Though other respondents were served as per law, they did not appear.
3. I shall refer the parties in this appeal as 'plaintiffs' and the 7th defendant', for convenience.
4. Originally, the suit was one filed by the plaintiffs to declare that sale deed No.1399/2004 of Thrikkakara SRO, is not binding on the plaintiffs as regards their right, title and possession over 1.85 Ares of properties, mentioned as Item No.2 in the said sale deed, which is the plaint schedule property. Recovery of possession of the same also was sought for.
5. The 7th defendant resisted the contention and claimed absolute title insofar as Item No.2 covered by the sale deed No.1399/2004, whereby, the 7th defendant purchased property from defendants 1 to 6.
6. The trial court ventured the matter. PW1 was examined and Exts.A1 to A7 were marked on the side of the plaintiffs. DW1 was examined on the side of the defendants. Exts.C1 and C1(a) were marked as court exhibits. Finally, the court below granted decree as under:
1) It is declared that sale deed No.1399 of 2004 of Thrikkakara is not binding on the plaintiffs as regards their right, title and possession over 1.85 ares of property mentioned as item No.2 in the said sale deed which is the property scheduled in the plaint.
2) Plaintiffs are entitled to recover possession over plaint schedule property which is marked with letter "I" and shown in orange colour in Ext.C1(a) sketch.
3) Ext.C1(a) will form part of the decree.
4) There is no order as to costs.”
7. Even though, appeal was filed, the appellate court also concurred the said finding.
8. At the time of admission, the learned counsel for the 7th defendant submitted that, as per Ext.A5 sale deed, two schedules incorporated. As per the first schedule, the property comes to 14.40 and as per the second schedule, the property is 1.85 Ares. Earlier, suit, as O.S.No.696/2009 was filed before the Sub Court, Ernakulam, for partition of Item No.1 in Ext.A5 sale deed and to set aside Ext.A5. The matter went upto this Court vide R.S.A.No.189/2016. As per judgment, dated 20.6.2016 in R.S.A.No.189/2016, this Court found that the courts below went wrong in declaring the sale deed as such null and void and accordingly, the preliminary decree got modified as under:
1) It is declared that sale deed No.1399 of 2004 of Trikkakkara SRO is not binding on the plaintiffs or their ¼ share in the plaint schedule property.
2) The plaint schedule property will be divided by metes and bounds into 4.
3) The plaintiffs are entitled to one share and defendants 1 to 6 ¾ share.
4) The plaintiffs will be put in separate possession of their share.
5) Out of the share allotted to defendants 1 to 6, the property covered by the sale deed executed by them in favour of the 7th defendant will be set apart for him to the extent possible.
6) If the ¾ share allotted to defendants 1 to 6 is less than 14.49 ares the 7th defendant will not be entitled to a greater extent.
7) The suit is adjourned sine die.”
9. In this appeal, the specific point argued by the learned counsel for the 7th defendant that, in O.S.No.696/2009, the plaintiffs did not raise claim over Item No.2 in Ext.A5 and therefore, the present suit is hit by Order II Rule 2 of the C.P.C.
10. Per contra, the learned counsel for the plaintiffs submitted that in order to
The mandatory requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the C.P.C. and the need for the bar under Order II Rule 2 to be ....
The validity and consequences of a sale deed, including the transfer of title and possession, must be raised and challenged within the statutory time limit to be considered valid.
A second appeal under Section 100 of the CPC requires the formulation of a substantial question of law; otherwise, it cannot be maintained.
The main legal point established in the judgment is that reliance on an unregistered document and failure to seek necessary reliefs can render a suit not maintainable.
A second appeal under CPC does not warrant interference when no substantial question of law arises, affirming the necessity of establishing ownership before claiming possession.
An agreement of sale does not create any interest or charge on the property, and sale is a transfer of ownership.
The main legal point established in the judgment is that the suit was clearly barred by the law of limitation and the plaint was required to be rejected under Order VII Rule 11 of the C.P.C.
The court emphasized the importance of proving ownership and complying with the rules of non-joinder of parties and limitation in civil suits.
The main legal point established in the judgment is the application of Order VII Rule 11 of the Civil Procedure Code, 1908, and the determination that the suit was barred by limitation.
The court emphasized the importance of proving ownership, adhering to limitation periods, and joining necessary parties in civil suits.
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
