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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
Augustine – Petitioner
Versus
Jancy Thomas And Ors. – Respondents
RSA NO. 639 OF 2023
Decided On : 25-10-2023
CPC - Challenge to Decree and Judgment - Section 100 r/w Order XLII Rule 1 - Summary of Acts and Sections: Code of Civil Procedure, 1908 - Section 100, Order XLII Rule 1
Fact of the Case:
The case involved a suit for partition, with a preliminary decree passed in 2008 and a final decree application filed in 2009. The matter reached the court by way of a second appeal challenging the final decree passed by the trial court and the appellate court on an earlier occasion.
Finding of the Court:
The court found that the commission reports, for which no objection was raised by the appellant, were believable and acted upon by the trial court and the appellate court. The court also emphasized the requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the CPC.
Issues: The issues included the challenge to the allotment of shares of profits and future profits, the sufficiency of commission reports, and the requirement to formulate substantial questions of law for admitting and maintaining a second appeal.
Ratio Decidendi: The court emphasized the requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the CPC. It also highlighted the importance of raising objections to commission reports and the need for substantial questions of law to be of real importance and not merely technical or academic.
Final Decision: The appeal was dismissed without being admitted, and all interlocutory applications pending in the regular 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, 1908 (hereinafter referred to as 'CPC' for short), challenging decree and judgment in A.S.No.47/2020 on the files of the District Court, Kottayam dated 09.06.2023 arising out of the final decree application (hereinafter referred to as 'FDIA', for short) No.459/2009 in O.S.No.262/2006 on the files of the Munsiff Court, Vaikkom dated 11.03.2019. The appellant herein is the first defendant/first respondent in FDIA No.459/2006 and the appellant in A.S.No.47/2020. The respondents herein are defendants 2 and 3 and plaintiffs in the original suit.
2. Heard the learned counsel for the appellant. Perused the judgments under challenge.
3. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendant' for convenience.
4. In this matter, suit for partition was filed and accordingly, preliminary decree of partition was passed on 27.06.2008. As per the preliminary decree, 2/6th shares allotted to the first plaintiff and 1/6th share allotted to the second plaintiff. Pursuant to the preliminary decree, plaintiffs 1 and 2 filed FDIA, for which the first respondent filed objection.
5. The learned Munsiff tried the matter. PW1 examined and Exhibits A1 to A8 marked on the side of the plaintiffs. DW 1 examined and Commission Reports Exts.C1, C1(a), C1(b), C1(c), C2 and C3 were also marked on the side of the defendant. Thereafter, the trial court given emphasis to Ext.C1 series Commission Report and finally, granted final decree of partition as under:
(1) Plot nos. 1, 3 and 4 measuring out 79 cents 319 Sq.lings in extent more specifically shown in Ext.C1(b) plan was set apart to the share of the 1st plaintiff.
(2) Plot no.5 measuring out 41.710 in extent is allotted to the share of the 2nd plaintiff.
(3) Plot no.6 measuring out in extent 13.270 cents more specifically shown in Ext.C1(b) plan is set apart for the common access to the plaintiffs are well as the defendant in respect of their property.
(4) Property in Ext.C1(a) plan and plot no.2, 7 and B in Ext.C1(b) are allotted to the share of the defendants 1 to 3 together.
(5) The total value of the plaint schedule property 1 to 3 are estimated as Rs.23,69.505. Share of 1st plaintiff and 2nd plaintiff and defendants are valued Rs.8,62,881 Rs.4,52,575 and Rs.10,54,023 respectively. It is charged upon their share. 1st and 2nd plaintiff shall pay Rs.73,049 and Rs.57,659 to the defendants as owelty and it is charged upon their shares.
(6) Defendant shall bear their cost of the plaintiff.
(7) The share of profit allotted to the plaintiffs is as follows
(a) The 1st plaintiff is entitled to get Rs.60,000 per annum from the date of suit till 29.07.2013 the 1st defendant and she is entitled to get Rs.54,000 per annum from 29.07.2013 till the 1st plaintiff get actual possession of her share of properties from the 1st defendant.
(b) The 2nd plaintiff is entitled to get Rs.30,000 per annum as her pendente lite share and future share of profits from the date of suit till 29.07.2013 from the 1st defendant and she is also entitled to get Rs.27,000 per annum from 29.07.2013 till she get actual possession of her share from the 1st defendant.
(8) Pendente lite profits and future share of profits entitled by the plaintiff shall create a charge upon the share of the 1st defendant over the plaint schedule properties.
(9) Exts.C1,C1(a),C1(b), C1(c) form part of decree.”
4. Though appeal was filed before the appellate court, the appellate court also dismissed the appeal.
5. In this matter, the learned counsel for the first defendant/appellant submitted that the first defendant is aggrieved in the matter of allotment of shares of profits and future profits, relying on the Commission Reports available. According to the learned counsel for the first defendant/appellant, the Commission Reports available and relied on by the trial
The main legal point established in the judgment is the requirement to formulate substantial questions of law for admitting and maintaining a second appeal under Section 100 of the CPC.
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