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HIGH COURT OF KERALA
A. BADHARUDEEN, J
MANIKKOTH PRADEEP KUMAR – Appellant
Versus
MINI – Respondent
RSA 443 2023
CPC - Civil Procedure - Section 100, Order XLII - This case deals with the requirements for maintaining a second appeal under the Code of Civil Procedure, emphasizing the necessity of formulating a substantial question of law for the appeal to be admitted.
Fact of the Case:
The plaintiff claimed ownership of property through a deed and sought a mandatory injunction against the defendant for unlawful occupation. The defendant contested the validity of the deed but did not successfully challenge it in court.
Finding of the Court:
The courts found that the title of the plaintiff was valid as the defendant failed to set aside the deed through an appropriate legal challenge. Thus, the plaintiff was entitled to relief.
Issues: Whether a substantial question of law existed to warrant the admission of the second appeal under CPC Section 100.
Ratio Decidendi: The court emphasized that for a second appeal to succeed, a substantial question of law must be articulated, and without it, the appeal cannot be maintained.
Final Decision: The regular second appeal is dismissed without being admitted.
JUDGMENT
Dated this the 4th day of October, 2023 This regular second appeal has been filed under order XLII Rule 1 and 2 read with Section 100 of the Code of Civil Procedure challenging the decree and judgment in A.S. No.41/2020 dated 13.12.2022 on the files of the Court of the 1st Additional District Judge, Kozhikode arising from decree and judgment in O.S. No.751 of 2016 dated 20.12.2019 on the files of the Additional Munsiff Court, Kozhikode-II.
2. The appellant herein is the defendant in O.S.
No.751 of 2016 and the respondent herein is the plaintiff.
3. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent on admission.
4. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court.
5. Precisely the plaintiff's case is that, as per Ext.A11 Jenmam Assignment Deed No.1624/2015 of Chalapuram SRO, the defendant herein sold the entire plaint schedule property along with a building therein. According to the plaintiff, thereafter, the defendant trespassed upon the partly completed building, occupied the same and has been possessing the same in continuation of the said illegal occupation. Since the plaintiff is the title holder in de jure possession of the property, she had filed a suit seeking the relief of mandatory injunction to direct the defendant to vacate himself from the plaint schedule property. Relief of damages for unlawful use and occupation also was claimed along with the prohibitory injunction against further trespass upon the plaint schedule property.
6. The defendant filed written statement and narrated financial transactions in between the plaintiff and defendant along with Saseendran, Raveendrakuruppu and Suresh, while admitting execution of Ext.A11, though it was contended that Ext.A11 was not intended to be executed as a sale deed to confer title. It was contended further that O.S. No.533 of 2016 was filed by the defendant to set aside Ext.A11 and document Nos. 260/2000 and 2692/2005, since the said documents were generated by playing fraud.
7. Based on the said plea, the Munsiff Court tried the matter. PW1 examined and Exts.A1 to A11 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B5 marked on the side of the defendant. Finally, the learned Munsiff Court decreed the suit as under:
Issue No. 4:- In the result, suit is decreed as follows-
1. Defendant is directed by way of mandatory injunction to vacate himself and all his belongings from plaint schedule property within one month from the date of the order.
2. Defendant is directed to pay damages for unlawful use and occupation for an amount of 5,000/- from 23.06.2016 till date of its realisation.
3. Defendant is directed by way of permanent prohibitory injunction from trespassing into plaint schedule property.
4. Plaintiff is entitled to realise the costs of the suit from the defendant.
8. Although, the decree and judgment of the trial court were assailed before the Appellate Court, as per judgment in A.S. No.41/2020 dated 13.12.2022, the learned Additional District Judge also dismissed the appeal.
9. At the time of hearing, the learned counsel for the defendant argued that Ext.A11 title deed relied on by the plaintiff to assert title over the plaint schedule property is a sham document executed by fraudulent means. Therefore, the same would not confer title upon plaintiff and in such circumstances, the mandatory injunction and the other reliefs claimed by the plaintiff could not be granted. As such, the trial court as well as the Appellate Court went wrong in granting the said reliefs.
10. Whereas, the learned counsel for the plaintiff submitted that till this date the defendant did not challenge Ext.A11 by filing a suit to set aside the same. Therefore, the legal sanctity of Ext.A11 is intact and acting on the valid title deed of plaintiff, the trial court as well as the Appellate Court found that the plaintiff is the owner of the property a
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