The substantial question of law for admitting a second appeal under Section 100 of the C.P.C. must be formulated by the High Court and must involve a substantial question of law.

JUDGMENT :

R.S.A.No.72/2024 is at the instance of plaintiff No.2, Sri Krishnankutty in O.S.No.330/2011 on the files of the Munsiff Court, Cherthala, challenging the decree and judgment in A.S.No.2 of 2021, whereby the verdicts rendered by the Munssiff Court in O.S.No.330/2011 were confirmed. The respondents herein are the original defendant as well as the legal heirs of the 1st plaintiff. R.S.A.No.73/2024 is also filed by Krishnankutty and others, challenging the decree and judgment in A.S.No.12/2022, on the files of Sub Judge, Thiruvalla and respondents are the defendants in O.S.No.245/2011 on the files of Munsiff Court, Thiruvalla.

2. Heard the learned counsel for the appellants on admission. Perused the verdicts under challenge as well as the relevant documents placed by the learned counsel for the appellants.

3. I shall refer the parties in this appeal as 'Krishnankutty and others' (2nd and 3rd defendants in O.S.No.245/2011) and 'Sivashankara Pillai' (plaintiff in O.S.No.245/2011). Initially Sivashankaran Pillai, as plaintiff, filed O.S.No.245/2011 seeking the relief of permanent prohibitory injunction against trespass upon plaint item Nos.1 and 2 properties and also mandatory injunction to reinstate the gate on the entrance portion of plaint schedule item No.2.

4. According to Sivashankara Pillai, plaint schedule item 1 property and plaint item 2 pathway were purchased by Sivashankara Pillai as per sale deed Nos.66/1991 and 2880/1962 respectively. Plaint item No.2 property is the way purchased by Sivashankara Pillai available to plaint item No.1 property. The specific case of Sivashankara Pillai is that defendants' property lies on the south-eastern portion of plaint item No.1 property and the same is having road access through eastern side of plaint item No.3 pathway. Thus Sivashankara Pillai raised contention before the trial court that the defendants had no manner of right over plaint item Nos.1 and 2.

5. Krishnankutty and others resisted the Suit claiming right over item No.2 way in O.S.No.245/2011. Apart from that, Krishnankutty and others filed O.S.No.330/2011 claiming easement by grant as well as easement by necessity over plaint item No.3 pathway in O.S.No.245/2011 (plaint item No.2 in O.S.No.245/2011) and sought the relief of declaration of the said right, as well as prohibitory and mandatory injunction.

6. The courts below tried the Suits separately. In O.S.No.245/2011, PWs 1 to 3 were examined and Exhibits A1 to A13 were marked on the side of plaintiffs. DW1 and DW2 were examined and Exhibits B1 ad B2 were marked on the side of the defendants. Exts.C1 to C2(a) were also marked. Finally the trial court decreed the Suit filed by Sivashankara Pillai and others, viz., O.S.No.245/2011 as under :

“1. The defendants and the men under them are restrained from trespassing into plaint schedule item No.1 and properties or demolishing the compound wall in the eastern boundary of plaint schedule item No.1 property or travelling through plaint schedule item No.2 property by a decree of permanent prohibitory injunction.

2. The defendants are directed by a decree of mandatory injunction to reconstruct the demolished portion of the eastern compound wall of plaint schedule item No.1 property and to reinstate the gate at the entrance portion of plaint schedule item No.2 pathway within two months from the date of decree, falling which the plaintiff can execute the decree through the process of court at the costs of the defendants.

3. The plaintiff is entitled to get costs from the defendants.”

7. O.S.No.330/2011 tried separately. PWs 1 to 4 were examined and Exts.A1 and A2 were marked on the side of the plaintiff and DW1 to DW3 were examined and Exts.B1 to B12(a) were marked on the side of the defendants also. Ext.C1 also was marked. Finally trial court dismissed the Suit. A.S.No.12/2022 and A.S.No.2/2021 filed by Krishnankutty and others challenging decrees and judgments in O.S.No.245/2011 and O.S.No.330/2011 respectively were dismissed by