A court cannot entertain a second appeal under Section 100 CPC unless a substantial question of law is raised, reaffirming that lower courts’ evidence assessments cannot be re-evaluated absent new compelling evidence.

JUDGMENT :

EASWARAN S., J.

The appeal is preferred by the State of Kerala aggrieved by the judgment and decree dated 21.12.2017 in OS No.336/2005 on the files of the Additional Munsiff’s Court, Palakkad as confirmed by the Additional District Court-V, Palakkad in AS No.101/2021 by judgment and decree dated 12.4.2024.

2. The brief facts necessary for the disposal of the appeal are as follows:

OS No.336/2005 is a suit for a declaration, mandatory and perpetual injunction. Initially, the suit was decreed by judgment and decree dated 28.7.2007 and the State of Kerala preferred AS No.403/2008 . By judgment dated 30.09.2014, the District Court, Palakkad set aside the judgment and decree of the trial court and the matter was remanded back for fresh consideration. Thereafter, by judgment and decree dated 21.12.2017, the suit was again decreed against which AS No.101/2021 was filed with an application to condone the delay of 1427 days in filing the appeal, which was dismissed by order dated 10.01.2023. Aggrieved by the refusal of the appellate court to condone the delay and consequently dismissing the appeal, the State preferred RSA No.144/2023 . The second appeal was allowed by this Court by judgment dated 14.02.2024 by imposing a cost of Rs.5,000/- on the appellants to condone the delay of 1427 days in preferring the appeal and directing the first appellate court to re- hear the appeal and pass appropriate orders. Pursuant to the said direction, the appeal was reheard and by judgment dated 12.4.2024, the same was dismissed.

3. The respondent/plaintiff is in possession of 29 cents comprised in RS No.175/13 by virtue of assignment deed No.2223/2001 of SRO, Olavakkode. The property was assigned in favour of the plaintiff by one Smt.Sindhu, who had derived the title from a partition deed of the year 1975. Originally, the property belonged to the Palakkad Raja family. After purchase, when the plaintiff approached the Village Officer to effect mutation, he was informed that an error has crept in the re-survey records and only 9.5 cents is reflected and the rest is shown as purambokku land. Since the property had definite boundaries and that there was no purambokku land, the plaintiff approached the Resurvey Superintendent to get the resurvey records corrected. Since there was no response, the plaintiff issued a notice under Section 80 of the Code of Civil Procedure, 1908 and, thereafter, approached the Additional Munsiff’s Court for a decree of declaration, mandatory and perpetual injunction against the State. The mandatory injunction was sought to rectify the error that had crept in the re-survey records. The appellants herein/defendants entered appearance and contested the suit and contended that as per the Village resurvey records, only 9.14 cents in resurvey No.175/13 belongs to the plaintiff and the remaining is recorded as Government purambokku (Panchayat Office and PWD quarters etc). Though the title deed of the plaintiff contains an extent of 29 cents, the plaintiff cannot claim any property, which is not in possession. On behalf of the plaintiff, Exts.A1 to A15 documents were marked and PW1 was examined. Exts.X1 to X6 were also marked as third-party exhibits. After the remand by the first appellate court, the advocate commissioner was examined as PW2 and the report and plan submitted by him were marked as Exts.C2 and C3, whereas Ext.C1 is the interim report filed by the commissioner. On behalf of the defendants DW1 was examined. Based on the pleading