Back
2023 Supreme(Online)(KER) 2503
HIGH COURT OF KERALA
A. BADHARUDEEN, J
A.M. ABOOBACKER – Appellant
Versus
SUMATHI – Respondent
RSA 634/2023
K.JAYAKUMAR (SR.), SADER E.REAZ, V.S.AFSAL KHAN, P.P.JACOB
For an appeal under Section 100 CPC to be maintainable, it must pose a substantial question of law, which must be established through proper pleadings and proof.
Headnote:
CPC - Civil Procedure - ['Section 100', 'Order II Rule 2', 'Order XLII Rule 1'] - The court emphasized that to establish a bar under Order II Rule 2, the plea must be pleaded and proven. It affirmed that absent these, the bar cannot apply, thereby upholding the lower court’s decision due to non-establishment of a substantial question of law under Section 100.
Fact of the Case:
The plaintiffs filed a suit to declare a sale deed as not binding on them regarding a specific property and sought recovery of possession. The 7th defendant claimed absolute title through the sale deed, leading to litigation over the property in question.
Issues: Whether the claim of the 7th defendant was barred under Order II Rule 2 of the CPC based on earlier litigation and whether a substantial question of law was posed for the second appeal.
Ratio Decidendi: The appeal was dismissed as the court found that no substantial question of law existed to warrant the appeal's admission, as the procedural lapses regarding the previous suit's claims were not properly established.
Final Decision: The second appeal is dismissed without being admitted.
JUDGMENT
Dated this the 6th day of December, 2023 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:
“In the result, suit is partly decreed as follows:-
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:
“R.S.A No.189 of 2016 is allowed and preliminary decree is modified as follows.
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 t
