Mammedkutty,(Died) Lrs Impleaded vs State Of Kerala

A. Badharudeen, J

This 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), at the instance of the plaintiffs in O.S.No.134/2007 on the files of Munsiff Court, Manjeri. The appellants impugn decree and judgment in the above suit, dated 4.12.2015, which was confirmed by the Sub Court, Manjeri in A.S.No.2/2016, as per decree and judgment, dated 11.6.2018.

Heard the learned counsel for the appellants, the learned Senior Government Pleader appearing for respondents 1, 2 and 4 and Adv.Sri.Sayed Mansoor Bafakhy Thangal, the learned Standing Counsel appearing for the 3rd respondent, Vazhakkad Grama Panchayat, in detail.

I have perused the lower court records.

I shall refer the parties in this appeal as ‘plaintiffs’ and ‘defendants’ for convenience.

In this matter, plaintiffs, who alleged to have obtained property on the basis of Sale deed No.1491/1982 of Vazhakkad SRO, asserted title and possession over the plaint schedule property, having an extent of 4 cents. It is contended by the plaintiffs that they constructed a flour Mill in the plaint schedule property. According to the plaintiffs, the western side of the plaint schedule property is a public road. On 12.5.2006, plaintiffs received a notice, intimating that some portion of the property, where the flour mill situates, is puramboke and to vacate the same. But according to the plaintiffs, the mill is situated in the property covered by Ext.A1. Initially, relief of permanent prohibitory injunction, restraining the defendants and its office bearers from demolishing the flour mill or building, was sought for. Thereafter, plaint was amended, seeking decree of mandatory injunction, directing the 3rd defendant to renew the licence, to run the flour mill of the plaintiffs.

Defendants 1 and 2 filed written statement. The contention raised by the Government is that, the plaintiffs secured building number for the flour mill, by furnishing incorrect materials before the 3rd defendant, Panchayat. Later, Panchayat issued notice in the year 2002 and not renewed the licence from 2002 onwards, finding violation of conditions imposed in the permit. Thereafter, the 2nd defendant issued notice on 12.5.2006, for getting vacant possession of the land which was acquired earlier for widening Kondotty-Vazhakkad road. The survey records and sketch filed would clearly show that the flour mill is situated in puramboke land. Filing of two petitions before this Court, as O.P.No.8658/2002 and W.P. (C).No.23881/2006, also were pointed out in the written statement of the defendants 1 and 2.

After the amendment of the plaint, the 3rd defendant filed written statement and raised contention that there was no application for licence before the Panchayat and in order to issue a licence, a proper application in accordance with law, should have been filed. Construction of flour mill in violation of the conditions mentioned in the permit also was highlighted.

After raising necessary issues, the trial court recorded evidence. PW1 was examined and Exts.A1 to A11(d) were marked on the side of the plaintiffs. Exts.C1 to C3(a) were marked as court exhibits. No evidence let in by the other side.

The trial court considered the rival contentions and found that the plaintiffs were not entitled to get decree of permanent injunction from restraining the defendants and their officers from demolishing the flour mill or the building, since it was proved that the flour mill was situated in the property form part of Government land, acquired for road widening and the plaintiffs encroached upon the acquired land for the purpose of widening road and constructed the flour mill.

Appeal was filed before the Sub Court, Manjeri and the same also was dismissed. The appellate court found that, as per Ext.C2(a) plan, a portion of the flour mill is situated in Re-Sy.No.155, which is Edavannapara-Kondotty road. It was also found by the appellate court that, even though as per Ext.A5, building permit was issued to make construction in the property covered by Ext.A1 document, as per condition No.3 in Ext.A5, it was stated that construction should have been one, atleast 120 cm away from the public road and also as per condition No.12 and it was stipulated further that the construction should not encroach the Government property. But, the plaintiffs failed to obey the conditions and made construction of the flour mill in violation of the building permit.

The learned counsel for the plaintiffs argued at length, to convince this Court that the flour mill is, in fact, constructed in the property of the plaintiffs alone, after getting Ext.A5 building permit issued by the Panchayat. According to him, Ext.A1 is the title deed viz., Sale deed No.1491/1982 of Vazhakkad SRO, whereby, plaintiffs obtained 4 cents of property and Ext.A2 is the correction deed, whereby, the name of the second party of the document was corrected. It is argued by the learned counsel for the plaintiffs that no documents were placed by the defendants to prove that the flour mill was constructed in the puramboke land, though the plaintiffs produced their title deeds along with Exts.C1 to C3 series and the evidence of PW1 to hold the title of the plaintiffs. Accordingly, it is submitted that, this matter requires admission and the plaintiffs, who are occupying the plaint schedule property as well as running the flour mill, are not liable to be evicted, since they are the owner in possession of the same, after execution of Ext.A1 document.

The learned Government Pleader appearing for the defendants 1, 2 and 4 resisted the contention mainly on the submission that the corresponding Re-Survey Number of the property of the plaintiffs is 156 and the property acquired for the purpose of widening road by the Government in the year 1972, is in Re-Sy.No.155. He also submitted that the same would categorically establish the fact that the plaintiffs never obtained property in Re-Sy.No.155. As per Ext.A7, the Government/2nd defendant asked to vacate 103.50 m2 area of land in occupation of the plaintiffs covered by Re-Sy.No.155 of Vazhakkad Village, since the available evidence do not suggest any property in the name of the plaintiffs in Re-Sy.No.155. The claim of title, at the instance of plaintiffs, could not be found, as rightly held by the trial court and appellate court and therefore, this appeal must fail.

It is submitted by the learned Standing Counsel for the Panchayat that issuance of permit was subject to the conditions stipulated in the licence and therefore, the plaintiffs were bound to make construction, after obeying the conditions and any violation thereof, shall make the construction without any permission. It is argued further that the construction of the flour mill, is in violation of the building permit.

To be on the crux of the matter, Ext.A1 is the title deed relied on by the plaintiffs to prove that the plaintiffs obtained property, having an extent of 4 cents in old Sy.No.241/1 of Vazhakkad Village. Three commissions were appointed in this case. The last commission report is Ext.C3. The learned counsel for the plaintiffs given heavy reliance on Exts.C1, C2 and C3, to hold that defendants failed to prove lie of flour mill in puramboke land and also to assert that the evidence available would suggest that the plaintiffs established their case to the effect that they had constructed flour mill in the plaint schedule property they obtained as per Ext.A1 title deed.

In Ext.C3 report, the Commissioner stated that the lie of the plaint schedule as pointed out by the plaintiffs, is in old Sy.Nos.241/1A and 241/1B and the property covered by the title deed is in old Sy.No.241/1B and the Government land in possession of the plaintiffs is property in old Sy.No.241/1A. It was reported further that, properties were acquired for the purpose of Edavannapara-Kondotty road from old Sy.No.241, for which, Award No.3/1972, dated 16.12.1972, was passed, as part of acquisition. Thereafter, because of acquisition of property for road widening, old Sy.No.241 was bifurcated as 241/1A and 241/1B. Re-Sy.Number corresponding to old Sy.No.241/1A is 155. Similarly, Re-Sy.Number corresponding to old Sy.No.241/1B is 156. It was reported by the Commissioner that, property in Re-Sy.No.156/6 was reclaimed and 8 pillars were erected by the plaintiffs therein. It was reported by the Commissioner further that, as per village records, the property in old Sy.No.241/1A is puramboke of PWD and the property in old Sy.No.241/1B is Thacharakkavil property. It appears that the plaintiffs obtained property in old.Sy.No.241, though the survey number of the plaint schedule item not even stated in the schedule description of the plaint. Thereafter, there was acquisition of property for the purpose of widening the road and thereby, old Sy.No.241 was sub divided. Accordingly, two sub divisions emerged viz., 241/1A and 241/1B. 156 is the corresponding Re-Sy.Number of old Sy.No.241/1B and 155 is the corresponding Re-Sy.Number of old Sy.No.241/1A. As per Exts.A3 and A4 tax receipts also, payment of tax effected by the plaintiffs was only in respect of property in Re-Sy.No.156 and not in respect of property in Re-Sy.No.155. Thus, it appears that, the plaintiffs would succeed in the suit only when there is clinching evidence to show that the plaintiffs' property, one covered by Ext.A1, situates in Re-Sy.No.156 and Re-Sy.No.155. The plaintiffs have no case that plaint schedule property situates in Re-Sy.Nos.155 and 156 and the specific case is that, the property covered by Ext.A1 is one situated in Re-Sy.No.156 alone. Therefore, the property situated in Re-Sy.No.155 is Government land, for which, the plaintiffs have no title at all.

This is the context, in which, filing of two writ petitions before this Court by the plaintiffs, as contended by defendants 1 and 2, assumes significance. As per the contention raised by the defendants 1, 2 and 4, it could be gathered that the plaintiffs filed the above two writ petitions mainly with a view to get assignment of property situated in Re-Sy.No.155, where the flour mill overlaps, since the plaintiffs are well aware of the fact that a portion of the mill is now situated in Re-Sy.No.155, which is Government property. It is strange in note that when the 1st plaintiff, who was examined as PW1, when cross examined, a very pertinent question was asked by the learned Government pleader regarding filing of O.P.No.8658/2002 and W.P.(C).No.23881/2006 before this Court. But, the 1st plaintiff did not answer the query regarding filing of those petitions and he answered that he did not remember about it. At the same time, he had given evidence that no orders passed in the writ petitions and the prayer therein was to retain the mill in the property. Thus, it appears that, the plaintiffs, in fact, approached this Court for getting assignment of the property in Government land and thereafter would contend that they are the title holders of the entire extent of property, where the flour mill at present is situated. Therefore, the plaintiffs took deviation from the stand they taken in the writ petitions filed before this Court and the plaintiffs are taking a stand of 'approbate' and 'reprobate', so as to avoid demolition of the flour mill, which, in fact, lies in the property acquired for the purpose of widening the road. It is interesting in note further that PW1, who expected to give rational answers to the questions put to him, during cross examination, had given evasive answers, with a view to avoid his plea in the writ petition and his answers during cross examination would go to show that he, in fact, pretended ignorance of many things, which are vital and decisive in the facts of the case.

It is, at this juncture, the nature and lie of the building at present to be found from the Commission report. As rightly argued by the learned counsel for the 3rd defendant, Panchayat that, as per Ext.A5 building permit, the construction was permitted by imposing certain conditions, out of which, condition Nos.3 and 12 are already mentioned hereinabove.

On a perusal of the Commission report, along with the lie of the flour mill, the mandate of the conditions not complied and thereby, Panchayat, in fact, did not renew the licence after 2002, for want of compliance of the said conditions.

As of now, it is discernible from the materials that plaintiffs got absolute title and possession over 4 cents of property in old Sy.No.241, subsequently numbered as old Sy.No.241/1B corresponding to Re-Sy.No.156 and the plaintiffs never obtained any property as per Ext.A1 in Re-Sy.No.155 corresponding to old Sy.No.241/1A property, acquired by the Government for road widening. Insofar as the present litigation is concerned, the same is for prohibitory as well as mandatory injunction and therefore, it is the duty of the plaintiffs to prove their case to get the discretionary reliefs and on failure to do so, the only way is to dismiss the suit, as rightly done by the trial court and concurred by the appellate court.

In this case, in fact, the learned counsel for the appellants/plaintiffs failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus:

“2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”

Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

In the decision in Nazir Mohamed v. J. Kamala and Others reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], the Apex Court held that:

The condition precedent for entertaining and deciding  a second  appeal  being  the  existence  of  a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].

In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:

For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.

The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal.

In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal.

In the result, this appeal is found to be meritless and the same is dismissed without being admitted.

All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court, forthwith.