LI Network
Published on: October 27, 2023 at 16:42 IST
In a recent ruling by the Kerala High Court, the importance of adhering to the conditions mentioned under Section 100, read with Order XLII Rule 2 of the Civil Procedure Code (CPC), for admitting and maintaining a second appeal was underscored.
The Court emphasized that the legislature did not qualify the scope of a “substantial question of law” with the words “of general importance,” as seen in other provisions.
This means that a second appeal cannot be decided based on equitable grounds; it must meet the conditions outlined in the CPC.
The case in question revolved around the grant of relief for fixing boundaries and other matters by the trial court and the appellate court.
Justice A. Badharudeen, sitting as a Single Judge, noted that the defendant’s possession of a specific property had been granted with permission and continued as such, making him not a trespasser. Therefore, the plaintiff’s claim for a mandatory injunction could not succeed in a suit filed under these circumstances.
The Court referred to the precedent set in the case of Sant Lal Jain v. Avtar Singh, concluding that the relief of mandatory injunction could not be denied when a suit, though framed as a recovery of possession, aimed to prevent multiple lawsuits and the licensor from filing another suit.
The case originated from a property division among family members, with the plaintiff opposing the allotment of property to the defendant and initiating a suit to cancel the defendant’s title deed.
The defendant, who had received a particular portion of the property, terminated a license granted to the plaintiff. This led to the filing of the present suit, seeking various reliefs, including fixing boundaries, eviction, and claiming damages for use and occupation.
The plaintiff argued that the suit was a response to counter the defendant’s actions in obtaining the property in question. However, the trial court and the Sub Judge both decreed in favor of the defendant. The plaintiff then appealed the decision, which led to this judgment.
The Court noted that the plaintiff did not raise specific pleas for adverse possession, and a suit for mandatory injunction was insufficient when the proper course of action should have been a suit for recovery of possession or eviction. Furthermore, the plaintiff’s claimed title to the property earmarked for them was not established.
Citing the case of Joseph Severance v. Benny Mathew, the Court emphasized that a licensee’s occupation does not automatically become hostile possession or that of a trespasser when the license ends. The licensor can file a suit for mandatory injunction within a reasonable time, making such a suit maintainable.
The defendant contended that a suit for eviction or recovery should have been filed instead of a mandatory injunction, and the Court found merit in this argument. As a result, no substantial question of law was formulated to admit the second appeal, and the High Court dismissed the appeal.
Case title: Antony Frederic Baiju v. Titus Shaiju
