Shibu vs Peethambaran
2021 Latest Caselaw 22102 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

     FRIDAY, THE 5TH DAY OF NOVEMBER 2021/14TH KARTHIKA, 1943

                          RSA NO.1232 OF 2017


Against the judgment and decree dated 28.9.2017 in A.S.No.21/2013 on the
file of the Sub Court, Kattappana arising from the judgment and decree
dated 31.1.2013 in O.S.No.56/1996 on the file of the Munsiff's Court, Idukki
APPELLANT/3rd APPELLANT/3rd DEFENDANT:
           SHIBU,
           AGED 47 YEARS, S/O.KARUNAKARAN,
           RESIDING AT THUMARAKALAYIL HOUSE,
           MANGAPPARA KARA, KONNATHADY VILLAGE,
           UDUMBANCHOLA TALUK, IDUKKI 685 563.
           BY ADVS.
                SRI.N.ASHOK KUMAR
                SRI.C.HARIKUMAR
                SRI.RENJITH RAJAPPAN

RESPONDENTS/RESPONDENT & APPELLANTS 1 AND 2/PLAINTIFF &

DEFENDANTS 1 AND 2:

     1       PEETHAMBARAN,
             AGED 80 YEARS,
             FARMER, S/O. LATE SRI KANDARESIDING AT THUMARAKALAYIL
             HOUSE,MANGAPPARA KARA, KONNATHADY VILLAGE,UDUMBANCHOLA
             TALUK, IDUKKI 685 563
     2       KARUNAKARAN,
             AGED 77 YEARS, S/O. LATE SRI. KANDAFARMER, RESIDING AT
             THUMARAKALAYIL HOUSE,MANGAPPARA KARA, KONNATHADY
             VILLAGE,UDUMBANCHOLA TALUK, IDUKKI 685 563
     3       SHAJI,
             AGED 51 YEARS, S/O. KARUNAKARAN,THUMARAKALAYIL
             HOUSE,MANGAPPARA KARA, KONNATHADY VILLAGE,UDUMBANCHOLA
             TALUK, IDUKKI 685 563
             BY ADVS.
                  SRI.ALEXANDER JOSEPH
                  SRI.M.V.SABU
                  SRI.P.S.SIDHARTHAN


         THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

02.11.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.1232 of 2017


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                              JUDGMENT

This appeal is directed against the judgment and

decree dated 28.9.2017 in A.S.No.21/2013 on the file of

the Sub Court, Kattappana (hereinafter referred to as 'the

first appellate court') arising from the judgment and

decree dated 31.1.2013 in O.S.No.56/1996 on the file of

the Munsiff's Court, Idukki (hereinafter referred to as 'the

trial court'). The appellant is the 3rd appellant in

A.S.No.21/2013 on the file of the first appellate court and

the 3rd defendant in O.S.No.56/1996 on the file of the trial

court. The parties are hereinafter referred to as referred in

the original suit unless otherwise stated.

2. According to the plaintiff, he has been in

absolute possession and enjoyment of 1 acre and 60 cents

of land with a residential building comprised in

Sy.No.1/1/1007 of Konnathady Village as per sale deed

No.1779/1986 of Sub Registrar's Office, Rajakumari. The R.S.A.No.1232 of 2017

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1st defendant is in possession of the property immediately

on the western side of the plaint schedule property. On

16.6.1996 at about 2 pm., the defendants made an

attempt to trespass into the plaint schedule property.

Hence, the plaintiff filed the suit for injunction simpliciter

restraining the defendants from trespassing into the plaint

schedule property.

3. In the written statement filed, the defendants

contended that the plaint schedule property is not

identifiable. It is also contended that the 3 rd defendant has

obtained property having an extent of 60 cents on the

north-western side of the plaint schedule property. There

are no survey stones demarcating the plaint schedule

property and the property of the defendants. It is the

specific case of the defendants that even if the plaintiff

has any dispute regarding the boundaries, it can be

resolved through proper survey and demarcation of R.S.A.No.1232 of 2017

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boundaries of the properties owned by the plaintiff and

the defendants.

4. After the institution of the suit

(O.S.No.56/1996), the defendants filed O.S.No.69/1996

restraining the plaintiff from trespassing into the plaint

schedule property allegedly owned and possessed by the

defendants.

5. The trial court decreed O.S.No.56/1996 and

dismissed O.S.No.69/1996. Thereafter, the appellant and

respondent Nos.2 and 3 challenged the common judgment

and decree by preferring A.S.No.63/2000 and

A.S.No.65/2000 before the first appellate court. After

having heard both sides, the first appellate court

remanded the matter to the trial court for fresh

consideration. The trial court after considering the matter

afresh dismissed the suits as per common judgment and

decree dated 20.1.2004. The 1st respondent (plaintiff in R.S.A.No.1232 of 2017

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O.S.No.56/1996) preferred A.S.No.21/2004 challenging

the dismissal of O.S.No.56/1996. During the pendency of

the appeal (A.S.No.21/2004), the plaintiff filed

I.A.No.1688/2006 on 4.12.2006 for amending the plaint

by incorporating a relief for recovery of possession

alleging that the defendants had trespassed into the plaint

schedule property. The first appellate court allowed the

application and remanded the case to the trial court for

fresh disposal. The trial court was directed to permit the

plaintiff to adduce evidence for the identification of the

property and also for the alleged trespass made by the

defendants on 18.8.2004. The first appellate court framed

primarily two additional issues for trial. They were, (I)

Whether there was any trespass on the part of the

respondents on 18.8.2004? and (II) Whether the property

can be identified as per the report and plan? The

judgment and decree passed by the trial court was set R.S.A.No.1232 of 2017

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aside for adjudication of the claim of the plaintiff afresh in

the light of the points formulated as above.

6. Upon consideration of the above issues, the trial

court by judgment dated 31.1.2013 granted recovery of

possession of the plaint B schedule property to the

plaintiff and also consequential injunction restraining the

defendants from trespassing into the plaint A and B

schedule properties.

7. The defendants preferred A.S.No.21/2013

before the first appellate court challenging the judgment

and decree passed by the trial court. The first appellate

court dismissed the appeal confirming the judgment and

decree passed by the trial court.

8. This second appeal was admitted on 27.7.2018

on the following substantial question of law:-

"The second appeal is admitted on the following substantial question of law:

Are the Courts below justified in holding R.S.A.No.1232 of 2017

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that the plaintiff is entitled to a decree for recovery of possession of the property over which he has no title merely on the strength of his possession in a regular suit?"

9. Heard the learned counsel for the appellant and

the learned counsel for the respondents.

10. The learned counsel for the appellant contended

that the trial court went wrong in considering other issues

other than the issues framed by the first appellate court in

A.S.No.21/2004 while remanding the matter for fresh

consideration. According to the learned counsel for the

appellant, the first appellate court mainly relied on Ext.C1

commission report and entered a finding that the plaintiff

was in possession of the plaint B schedule property as on

the date of suit despite the finding in A.S.No.21/2004 that

the commission report is not sufficient to infer possession

over the plaint B schedule property. It was argued that R.S.A.No.1232 of 2017

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both the trial court and first appellate court granted

recovery of possession and injunction in favour of plaintiff

who is found to have no title to the property in a suit

where there is no prayer for declaration of title.

11. Per contra, the learned counsel for the

respondents contended that the plaint B schedule property

in O.S.No.56/1996 and plaint B schedule property in

O.S.No.69/1996 are the same property. According to the

learned counsel for the respondents, both the suits were

tried together and a common judgment and decree was

passed. No appeal was filed from the judgment dismissing

O.S.No.69/1996. Hence, according to the learned counsel

for the respondents, the decree in O.S.No.69/1996

became final and the present appeal challenging the

judgment and decree in O.S.No.56/1996 is hit by the

principles of res judicata.

R.S.A.No.1232 of 2017

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12. After having heard both sides, this Court framed

an additional substantial question of law in this appeal on

2.11.2021 as to whether the present appeal is hit by the

principles of res judicata as the judgment and decree in

O.S.No.69/1996 between the parties has become final.

The learned counsel for the appellant and the learned

counsel for the respondents filed written submissions

before this Court touching the above question of law.

13. O.S.No.69/1996 is a suit for injunction

simpliciter filed by the 1st and 3rd defendants for

permanent prohibitory injunction restraining the plaintiff

from encroaching upon the land actually possessed by the

defendants. Both the cases were tried together by the trial

court on the application of the defendants 1 and 3 in

O.S.No.69/1996. The parties were allowed to lead

evidence in O.S.No.56/1996.

R.S.A.No.1232 of 2017

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14. Both the cases were jointly tried.

O.S.No.56/1996 was decreed and O.S.No.69/1996 was

dismissed by the trial court on 24.8.1998. The decree

from O.S.No.69/1996 was challenged in A.S.No.63/2000

and the decree from O.S.No.56/1996 was challenged in

A.S.No.65/2000. By the judgment and decree dated

25.7.2002 both the appeals were allowed and the cases

were remanded. After remand, by the judgment dated

20.1.2004 the trial court entered the following finding in

paragraph 16 of the judgment:-

"16. Issue No.2: The case of the plaintiff in O.S.69/96 is that the defendant herein has threatened that he would trespass upon the plaint schedule property and would construct a fencing on the property belonging to the plaintiff.

According to the plaintiffs' averment in the written statement in O.S.56/96 there is no boundary marks on the boundary between the plaint schedule property herein and the property of the defendant. The commissioner who had measured out the property has also observed in his report R.S.A.No.1232 of 2017

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ie., Ext.C2, that there is no boundary marks on the western and southern boundaries of the B schedule properties. The evidence of DW2 ie., his assertions in the proof affidavit, indicates that there are survey stones on the boundary between the property of the defendant and the B scheduled property is demarcated by survey stones. According to him it can be identified on the basis of the cultivation effected in the properties. But their contentions in the written statement in O.S.69/96 are that there is no boundary stone and soil ridge on the boundary between the properties scheduled in O.S.56/96 and O.S.69/96. Hence the evidence let in by DW2 appears to be inconsistent with his averments in the written statement in O.S.56/96 and therefore, it cannot be relied on to prove their case. In the above circumstances, I am of the view that the plaintiff herein cannot be granted a decree as prayed for by them. Admittedly, there is no prayer for fixation of boundary between the property of the plaintiffs and the defendant. Without demarcating the boundary between the properties, the court cannot give a decree of permanent prohibitory injunction. Besides, in my finding under issue No.1 I have found that the R.S.A.No.1232 of 2017

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plaintiffs have failed to prove the attempt and threat allegedly made by the defendant. Hence, I am of the view that the plaintiffs are not entitled to get a decree as prayed for by them. Issue No.2 is found against the plaintiff."

15. Accordingly, both the suits were dismissed. The

decree in O.S.No.69/1996 was not challenged in appeal

and became final. The plaintiff challenged the decree in

O.S.No.56/1996 in A.S.No.21/2004 before the first

appellate court. Alleging that during the pendency of the

appeal the defendants trespassed into the plaint schedule

property the plaintiff amended the suit incorporating the

area trespassed upon having an extent 30.5 cents of

property as plaint B schedule property and seeking

recovery of possession of the property. The first appellate

court remanded the case for trial after framing issues as

stated hereinabove. Ultimately, O.S.No.56/1996 was

decreed by the judgment and decree dated 31.1.2013 of

the trial court. Recovery of possession of plaint B schedule R.S.A.No.1232 of 2017

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property was granted. Challenging the judgment and

decree, A.S.No.21/2013 was filed before the first appellate

court. By the judgment and decree dated 28.9.2017, the

first appellate court dismissed the appeal.

16. It is clear from the judgment and decree of the

trial court dated 20.1.2004 that both suits were

dismissed. It is clear from the judgment dated 20.1.2004

that facts are common in the above cases. In other words,

common questions of law and facts arise for

consideration. The identity of the property is directly

under challenge. When the identity of the property is

directly under challenge non-filing of appeal in

O.S.No.69/1996 is certainly a bar against the appellant

herein to prosecute the appeal. The mere contention that

the properties are different is not sufficient to escape from

the plea of res judicata. The principle of res judicata is as

such applicable. Both the suits were tried together and a R.S.A.No.1232 of 2017

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common judgment and decree was passed. In the

judgment and decree, it is specifically stated that the

property of the plaintiff and the defendants are not

identifiable. Hence, even if the decree passed by the trial

court in O.S.No.69/1996 is unsustainable in law, the

defendant cannot challenge the judgment and decree in

O.S.No.56/1996 alone without challenging the judgment

and decree in O.S.No.69/1996. The legal bar is clearly

applicable to the defendant/appellant.

17. The plaint A schedule property in

O.S.No.69/1996 is an area of 2 acres of land comprised in

Sy.No.1/1/1066-2 of Konnathady Village; whereas plaint B

schedule property is an area of 60 cents of land within the

above boundaries and all the improvements therein. The

plaint schedule property in O.S.No.56/1996 is an area of

1.60 acres of land comprised in Sy.No.1/1/1007 of

Konnathady Village.

R.S.A.No.1232 of 2017

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18. The total extent of property obtained by late

Kanda, father of the plaintiff and the 1 st defendant, as per

land assignment No.2/94 is 4.79 acres comprised in

Sy.No.1/1/1007. As per Ext.A1, the plaintiff obtained

property on the south-western portion of Sy.No.1/1/1007

and the 3rd defendant who is the appellant obtained

property having an extent of 60 cents as per Ext.B2 on

the north-western portion of Sy.No.1/1/1007. In Exts.A1

and B2, it is stated that possession of respective portion

was given to the parties. According to the learned counsel

for the appellant, as per Ext.A1, the plaintiff obtained

possession of property on the south-western portion and

the 3rd defendant obtained possession of property on the

north-western portion as per Ext.B2. The logic behind the

contention is that the 3rd defendant claimed title and

possession over a property other than the property

obtained as per Ext.B2. Thus, it is argued that the R.S.A.No.1232 of 2017

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properties covered as per Exts.A1 and B2 are different.

This contention is prima facie unsustainable for the reason

that there is a clear finding that the plaint schedule

properties are not identifiable.

19. In Premier Tyres Ltd. v. KSRTC [1993 KHC

296], the Supreme Court considered the effect of non-

filing of appeal in the connected suit tried with common

issues. The Apex Court held that the finality of the finding

recorded in the connected suit, due to non-filing of

appeal, precluded the court from proceeding with the

appeal in the other suit. Effect of non-filing of appeal

against a judgment and decree is that it becomes final.

This finality can be taken away only in accordance with

law. The same consequence follows when the judgment

and decree of the connected suit in O.S.No.69/1996 is not

appealed from. It is not possible to distinguish in this appeal

as contended by the learned counsel for the appellant that the

properties are different.

R.S.A.No.1232 of 2017

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In the result, this appeal fails and is dismissed. There

will be no order as to costs. Pending applications, if any,

stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj