USAMMAANTONY AND ANOTHER versus KARTHIYAYANI AND ANOTHER
[2015] 3 S.C.R. 737, Supreme Court of India, 2015
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
I 
[2015) 3 S.C.R. 737 
USAMMAANTONYANDANOTHER 
A 
v. 
KARTHIYAYANIANDANOTHER 
(Civil Appeal Nos. 3066-3067 of 2015) 
MARCH 20, 2015 
B 
[DIPAK MISRA AND PRAFULLA C. PANT, JJ.] 
Code of Civil Procedure, 1908 - s. 100 and Order XL/ 
n: 23, 23A and 24 - Second appeal - Scope of- Remand of 
case- Propriety of- Suit for injunction decreed by trial court C 
as well as first appellate court - High Court allowed the 
second appeal and remanded the matter to trial court- On 
appeal, held: The question formulated by High Court cannot 
be termed as substantial question of law - High Court by 0 
merely re-appreciating the evidence, reversed the concurrent 
findings of fact and remanded the matter - Hence second 
appeal not maintainable - Remand of the present case was 
not called for- Remand in such case amounts to harassment 
of litigant- Unnecessary delay in final disposal of a lis shakes E 
the faith of litigants in the court. 
Allowing the appeals, the Court 
HELD: 1. Second appeal uls. 100 of CPC, cannot 
be admitted unless there is substantial question of.law F 
involved in it. The question formulated by the High Court 
in the present case, cannot be termed to be a question 
of law, much less a substantial question of law. The 
question formulated is nothing but a question of fact G 
Merely for the reason that on appreciation of evidence, 
another. view could have been taken, it cannot be said 
that the High Court can assume the jurisdiction by 
terming such a question as a
substantial question of law. 
[Paras 11and12] [742-F; 743·E-F] 
H 
737
738 
SUPREME COURT REPORTS 
[2015] 3 S.C.R. 
A 
2. The High Court has, by merely re-appreciating 
the evidence, reversed concurrent findings of fact, and 
remanded the matter. The second appellate court should 
have restrained itself from remanding a case to the trial 
court. Remanding a case for re-appreciation of evidence 
B and fresh decision in the matter like the present one, is 
nothing but harassment of the litigant. The unnecessary 
delay in final disposal of a lis, shakes the faith of litigants 
in the court. [Paras 17 and 18] [744-G-H; 745-A-B] 
C 
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and 
D 
Ors. (1999) 3 SCC 722: 1999 (2) SCR 728 - relied on. 
Case Law Reference 
1999 (2) SCR 728 
relied on. 
Para 11 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 
3066-3067 of2015. 
From the Judgment and Order of the High Court of Kerala 
E at Ernakulam dated 06.06.2013 and 07.02.2014 in Regular 
Second Appeal No. 188 of 2013 and Review Petition No. 
611 of2013 respectively. 
Harshad V. Hameed, Dileep Poolakkot, Ashly Hameed 
F for the Appellants. 
The Judgment of the Court was delivered by 
PRAFULLA C. PANT, J. 1. These appeals have arisen 
G out of judgment and decree dated 6.6.2013,passed by the 
High Court of Kerala in Regular Second Appeal No. 188 of 
2013, whereby said appeal was allowed by the High Court. 
By the order dated 7.2.2014, passed by the High Court, Review 
Petition No. 611 of2013 in second appeal was dismissed. 
H
LI SAM MA ANTONY v. KARTHIYAYANI 
[PRAFULLA C. PANT, J.] 
739 
2. We heard learned counsel for the parties and perused A 
the papers on record. 
3. Briefly stated, plaintiff Annamma Thomas (predecessor-
in-title of the present appellants) instituted suit No. 415 of 2005 
before the Principal Munsiff, Alappuzha, for injunction B 
restraining the defendants from trespassing into the property 
mentioned in the schedule of the plaint, and from demolishing 
its boundary. It is pleaded in the plaint that the plaintiff 
Annamma and her two children Mathew and Benny were the 
absolute owners of the property, which they purchased vide C 
Sale Deed No. 824/80 dated 3.5.1980. They further pleaded 
that they were in possession of the property. It is also pleaded 
by the plaintiffs that the defendants are the Kudikidappukari 
(persons holding tenancy rights) of the previous owners to the 0 
extent of 10 cents of property (1/10th of an acre), which is on 
the northern side of the property in suit. The defendants were 
in possession of said part. It is further pleaded by the plaintiffs 
that boundary between the property in question and that of the 
defendants is well demarcated. It is alleged by the plaintiffs E 
that on 19.6.2005, the defendants attempted to demolish the 
existing fence. Therefore, the suit filed. 
4. The defendants filed written statement and additional 
written statement, and contested the suit. They denied the 
F 
title of the plaintiff over the land in question. They
also denied 
having attempted to demolish the fencing as alleged by the 
plaintiff. It is stated in the written statement that mother of the 
defendant No. 1 was given 10 cents of the land on the north of 
'Thodu' (water channel), lying on the northern side of the G 
property. 
5. The trial court framed as many as five issues, including 
the issue relating to correctness of description of the property 
in suit. After giving opportunity to the parties to adduce H
740 
SUPREME COURT REPORTS 
[2015] 3 S.C.R. 
A evidence, and after hearing them, the trial court found that the 
property in the suit is owned by the plaintiffs and decreed the 
suit with following directions: - ·. 
B 
c 
D 
"1. The defendants are restrained by a decree of 
permanent prohib~ory injunction from trespassing into 
the plaint schedule property i.e. property on the south 
of the boundary fence consisting of poovarash trees 
existing on the northern boundary of the plaint 
schedule property and from demolishing this 
boundary. 
2. The northern boundary of the plaint schedule 
property is fixed as the existing boundary fence, 
constituted of poovarash trees i.e. 40 ems, to the south 
of EF line of the C1 (b) plan. C1(b) plan is attached 
along with the decree." 
6. Aggrieved by said judgment, the defendants filed A.S. 
No. 123 of 2009 before the District Judge, Alappuzha. At the 
E appellate stage, the defendants sought to adduce additional 
evidence which was allowed by the first appellate court, and 
documents Ext. B-1 to B-9 were taken on record. The first 
appellate court, after hearing the parties, affirmed the decree 
of the trial court, vide its judgment and decree dated 
F 
19.10.2012, with following directions and modifications: -
G 
H 
"In the result, the appeal allowed in part. Suit decreed 
fixing the northern boundary of plaintiffs property as 
EF line. Ext. C1 (b) plan will form part of the decree 
and granted a permanent prohibitory injunction
restraining the defendants from trespassing into the 
property of plaintiff or causing any kind of obstruction 
of its peaceful possession and enjoyment."
LISAMMAANTONY v. KARTHIYAYANI 
[PRAFULLA C. PANT, J.] 
741 
7. Following reasons are given in para 8 of the judgment A 
of the first appellate court for the above directions: -
"On measurement by the commissioner it was found 
that 20 cents of property available and there is no 
reduction in extent. If that be so, the property can be 
located based on the title of plaintiff at first and the 
remaining 10 cents will go to the defendants as the 
defendants have obtained title subsequently under" 
Ext. B 1 document and that is what actually done by 
the commissioner who prepared Ext. C 1 (b) plan. The 
existence of thodu and road in their respective 
properties will not affect their title. The commissioner 
who prepared Ext C1 (b) plan has located the property 
of 10 cents owned by the plaintiff as well as the 10 
cents owned by the defendants and the dividing line 
correctly located as EF line in the plan. The location 
of Poovarash tree also located in the plan. The 
property is seen measured and located in reference 
to the old survey stones which are also located. All 
these would clearly show that the boundary line 
separating these two properties was fixed in 
accordance with the survey plan as well as document 
of title of plaintiff. So there cannot be any reason for 
interference to the finding of the survey line separating 
these properties. The place wherein the fencing 
situated not noted in Ext. C 1 (b) plan. No attempt was 
made by the defendants in order to locate
the place 
wherein the fencing is situated. There is no prayer 
for recovery of possession of any portion of property 
by the respective parties and hence the finding of the 
lower court that the EF line is the boundary line in 
between the property of plaintiff and defendants can 
safely accepted." 
B 
c 
D 
E 
F 
G 
H
742 
SUPREME COURT REPORTS 
(2015] 3 S.C.R. 
A 
8. Dissatisfied from the decree of the first appellate court, 
the defendants filed Second Appeal No. 188 of 2013 before 
the High Court which was disposed of by said court vide 
impugned judgment and decree dated 6.6.2013. 
I 
B 
9. Paragraph 7 of the impugned judgment and decree, 
passed by the High Court, shows that the High Court framed 
following question as substantial question of law: -
"Did the courts below go wrong in overlooking the 
c 
boundaries and descriptions in Ext. 81, which is a 
vital document so far as it relates to the identity of the 
property claimed by the defendants?" 
10. It is argued before us on behalf of the appellants that 
D the High Court has erred in law in upsetting the concurrent 
findings of fact recorded by the courts below. On the other 
hand, learned counsel for the respondents contended that the 
appellants have still right to prove their claim as the matter has 
E 
been remanded by the High Court to the trial court. 
11. It is settled principle of law that second appeal under 
; Section 100 of the Code of Civil Procedure, 1908, cannot be 
admitted unless there is substantial question of law involved 
in it. As to what is substantial question of law, in Kondiba 
F Dagadu Kadam v. Savitribai Sopan Gu jar and others1, this 
Court has explained the position of law as under: -
"6. If the question of law termed as a substantial 
question stands already decided by a larger Bench 
G 
of the High
Court concerned or by the Privy Council 
or by the Federal Court or by the Supreme Court, its 
merely wrong application on the facts of the case 
would not be termed to be a substantial question of 
law. Where a point of law has not been pleaded or is 
H
LISAMMA ANTONY v. KARTHIYAYANI · 
[PRAFULLA C. PANT, J.] 
found to be arising between the parties in the absence 
of any factual format, a litigant should not be allowed 
to raise that question as a substantial question of law 
·in second appeal. The mere appreciation ofthe facts, 
the documentary evidence or the meaning of entries 
and the contents of the document cannot be held to 
be raising a substantial question of law. But where it 
is found that .the first aj!pellate court has assumed 
jurisdiction which did not vest in it, the same can be 
adjudicated in the second appeal, treating it as a 
substantial question of law. Where the first appellate 
court is shown to have exercised its discretion in a· 
judicial manner, it cannot be termed to be an error 
either of law or of procedure requiring interference in 
second appeal." 
743 
A 
B 
c 
D 
12. In view of the above position of law, the question 
formulated by the High Court in the present case, as quoted 
above, cannot be termed to be a question of law, much less a 
substantial question of law. The above question formulated is 
E 
nothing but a question of fact. Merely for the reason that on 
appreciation of evidence another view could have been taken, 
it cannot be said that the High Court can assume the 
jurisdiction by terming such a question as a substantial question 
of law. 
.• . 
\ 
F 
13. Having gone through the impugned order challenged 
before us and aner considering the submissions of learned 
counsel for
the parties, we are of the view that the High Court 
has simply re-appreciated the evidence on record and allowed G 
the second appeal and remand ea the matter t6 the trial court. 
. . 
' 
. , 
14: Rule 23 of Order XU of Code of Civil Procedure Code, 
H
744 
SUPREME COURT REPORTS 
[2015] 3 S.C.R. 
A 1908, (for short ''the Code") provides that where the court from 
whose decree an appeal is preferred has disposed of the suit 
upon a preliminary point and the decree is reversed in appeal, 
the Appellate Court may, if it thinks fit, by order remand the 
case, and may further direct what issue or issues shall be tried 
B in the case so remanded, and shall send a copy of its judgment 
and order to the Court from whose decree the appeal is 
preferred, which directions to re-tidmit the suit under its original 
number in the register of civil suits, and proceed to determine 
C the suit; and the evidence (if any)recorded during the original 
trial shall, subject all just exceptions, be evidence during the 
trial after remand. 
15. Rule 23A of Order XU of the Code provides that where 
0 
the court from whose decree an appeal is preferred has 
disposed of the case otherwise than on a preliminary point, 
and the decree is reversed in appeal and a re-trial is 
considered necessary, the Appellate Court shall have the same 
powers as it has under rule 23 .. 
E 
16. Rule 24 of Order XU of the Code further provides that . 
where evidence on record is sufficient, appellate court may 
determine case finally, instead of remanding the same to the 
lower court. 
, . · 
· 
· · • 
. 
. 
· 
· 
F 
/ ·17. Needless to say, in the present case, the suit was not 
disposed of on any preliminary i.ssue by the trial court. The 
second appellate cduri
s.hould have· restr~fned itself from 
remanding a case to the trial court. Rema11ding a c.ase for re-
appreciation of evidence and fresh decision in the 'matter like 
G the present one is nothing but harassrrient of the litigant. The 
unnecessary delay in final disposal of a lis, shakes the faitn of 
litigants in the court. 
H 
18 .. With the above observations, after having found that

LISAMMA ANTONY v. KARTHIYAYANI 
[PRAFULLA C. PANT, J.] 
745 
there was no substantial question of law involved in the second A 
appeal before the High Court, and that the High Court has, by 
merely re-appreciating the evidence, reversed concurrent 
findings of fact, and remanded the matter, we have no option 
but to allow these appeals. 
19. Accordingly the appeals are allowed. The impugned 
judgment and decree dated 6.6.2013, passed by the High 
Court in Regular Second Appeal NO. 188 of 2013 and order 
dated 7.2.2014 in Review Petition No. 611of2013, passed 
B 
by the High Court, are set aside. The judgment and decree as C 
modified by the first appellate court shall stand affirmed. There 
shall be no order as to costs. 
Kalpana K. Tripathy 
Appeals allowed. 
D