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2023 Supreme(Online)(KER) 15961
HIGH COURT OF KERALA
A. BADHARUDEEN, J
SAKUNTHALA – Appellant
Versus
SAVITHRI – Respondent
RSA 209 2023
K.ABOOBACKER SIDHEEQUE, K.V.WINSTON, M.DEVESH, T.KRISHNANUNNI (SR.), MEENA.A., VINOD RAVINDRANATH, K.C.KIRAN, M.R.MINI, ASHWIN SATHYANATH, ANISH ANTONY, ANATHAZHATH THAREEQ, ANVER K.
The court emphasized that the presence of a substantial question of law is mandatory for the admission of a second appeal under Section 100 of the CPC.
Headnote:
CPC - Civil Procedure - Section 100, Order XLII - Appeal requirements
Fact of the Case:
Defendants appealed against a final decree related to property partition, challenging the trial court's appointment of a Commissioner and the resulting allotment of shares without procedural objection at earlier stages.
Finding of the Court:
The court found that the defendants had not raised objections to the Commissioner's reports during the trial, and the appellate court appropriately considered the subsequent reports confirming access to their plots.
Issues: Whether the appeal involved a substantial question of law necessary for admission under Section 100 of the CPC.
Ratio Decidendi: For an appeal under Section 100 of the CPC to be maintained, there must be a substantial question of law that is distinct from mere factual disputes.
Final Decision: The regular second appeal is dismissed without being admitted.
JUDGMENT
Dated this the 5th day of October, 2023 This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the final decree and judgment in A.S. No.7 of 2021 dated 29.10.2022 on the files of the Court of the Subordinate Judge, Tirur arising from final decree and judgment in FDIA No. 341 of 2019 in O.S. No.163 of 2016 dated 20.01.2021 on the files of the Court of the Munsiff- Magistrate, Ponnani.
2. The appellants herein are the defendants in O.S.
No.163 of 2016 and the respondent herein is the plaintiff.
3. As per the order passed by my predecessor dated
22.06.2023, it was ordered as “Admit”. But, it appears that no substantial question of law formulated for admitting the appeal. Therefore, the said order stands reviewed and set aside being illegal, as against the mandate of Section 100 read with order XLII of CPC. Accordingly, the appeal is reverted back to the admission stage.
4. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondent on admission.
5. Parties in this appeal shall be referred as “plaintiff” and “defendants” with reference to their status before the trial court.
6. In this matter, after passing of the preliminary decree for partition, the plaintiff filed Interlocutory Application (Final Decree) No.341/2019. While adjudicating the final decree application, the learned Munsiff appointed a Commissioner with the assistance of a Surveyor. The Commissioner and Surveyor filed reports marked as Exts.C1 to C3. After filing of the reports, no objection raised by the petitioner/plaintiff or the respondents/defendants therein disputing allotment of shares as shown in Exts.C1 to C3.
Accordingly, the trial court passed final decree as under:
i) That the plot no.1 in Ext.C2 is allotted to the petitioner.
ii) That the plot no.2 in Ext.C2 and the house thereon are allotted to the respondents.
iii) That the plot no.1 in Ext.C3 is allotted to the petitioner.
iv) That the plot no.2 in Ext.C3 is allotted to the first respondent.
v) That the plot no.3 in Ext.C3 is allotted to the second respondent.
vi) That the respondents shall pay Rs.1,69,964 to the petitioner. The petitioner shall have a charge on the plots alloted to the respondents for the aforesaid amount.
vii) and that the Exts.C1 to C3 shall form part of the final decree.
7. It is submitted by the learned counsel for the appellants/defendants that, though the appellants who are respondents/defendants in the above final decree application did not file any objection to the Commissioner report and plan, at the appellate stage, they filed a petition to appoint another Commissioner and the same was allowed by the Appellate Court. Accordingly, Exts.C4 and C5 reports were obtained.
8. The case of the appellants/defendants is that, as per the plan relied on by the trial court to allot shares, no way provided to the property of the appellants/defendants.
9. As I have already pointed out, no objection raised by the defendants before the trial court disputing the correctness of Exts.C1 to C3 plans. Thereafter, the final decree was engrossed in non-judicial stamp paper and the plaintiff initiated proceedings to get her share delivered. At this juncture, appeal was preferred with delay petition. It is true that during appellate stage, Exts.C4 and C5 report and rough sketch were obtained and the learned Appellate Judge considered the same also. As per Exts.C4 and C5, the Commissioner reported that there is height difference between the western side road and eastern side plot of the appellants/defendants and the same is only 3 feet. Therefore, the defendants could very well easily have access towards the eastern side plot from the western side road. Therefore, there is no merit in the contention raised by the defendants to the effect that their plots were not provided with pathway.
10. On perusal of the matter in detail, the Appellate Court though not found fault w
