Pushpam vs Vilasini
2022 Latest Caselaw 9693 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                      THE HONOURABLE MRS. JUSTICE M.R.ANITHA

              FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944

                                RSA NO. 251 OF 2021

AGAINST THE JUDGMENT AND DECREE DATED 13.10.2020 IN A.S. NO.36/2004 ON THE FILE OF

                       THE COURT OF SUB JUDGE, NEYYATTINKARA

  JUDGMENT AND DECREE DATED 20.11.2003 IN O.S.NO.94/2002 ON THE FILE OF COURT OF

                         PRINCIPAL MUNSIFF, NEYYATTINKARA

APPELLANTS/APPELLANTS/DEFENDANTS NO.1 & 2 :

      1      PUSHPAM, D/O. MARIYA, ALUNINNAVILA VEEDU,
             MANALOOR DESOM, NEYYATTINKARA PAKUTHY
      2      RETNAMMA, D/O.PUSHPAM,
             ALUNINNAVILA VEEDU, MANALOOR DESOM,
             NEYYATTINKARA PAKUTHY
             BY ADV S.MOHAMMED AL RAFI


RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS NO.3 & 4:

      1      VILASINI, AGED 70 YEARS
             D/O. REGINAL,CHUNDAVILA, ALUNINNAVILAPUTHEN VEEDU, MANALUR DESOM,
             NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121
      2      PREETHA
             AGED 45 YEARS
             D/O. VILASINI, ,CHUNDAVILA, ALUNINNAVILA PUTHEN VEEDU, MANALUR DESOM,
             NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121
      3      BINDU
             D/O.RETNAMMA, ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA
             PAKUTHY, THIRUVANANTHAPURAM-695 121
      4      VICTOR
             ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA PAKUTHY,
             THIRUVANANTHAPURAM-695 121
             BY ADVS.
             SRI.R.T.PRADEEP-R1
             SRI.K.C.HARISH -R1



      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
05.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:
 RSA No.251 of 2021
                                    2




                              JUDGMENT

Dated this the 26th day of August, 2022

This appeal has been directed against the judgment and

decree in A.S. No.36/2004 on the file of Subordinate Judge's

Court, Neyyattinkara, which arose out of judgment and decree

in O.S. No.94/2002 on the file of Principal Munsiff's Court,

Neyyattinkara.

2. This is the second round of second appeal arising

from O.S. No.94/2002. The defendants 1 and 2 are the

appellants/plaintiffs and defendants 3 and 4 are the

respondents (parties hereinafter be referred as per their status

before the Trial Court). The suit is one for declaration of title,

recovery possession and permanent prohibitory injunction. The

plaint B schedule is a building situated in plaint A schedule

property and which was obtained by the plaintiffs as per sale

deed No.943/1978 executed by the mother of the first plaintiff.

The mother was holding 16 cents of property including plaint A RSA No.251 of 2021

schedule under mortgage kuzhikanam deed of the year 1121

M.E. Thereafter, she obtained purchase certificate with respect

to the property as per the proceedings in S.M. case

No.263/1973. Parents of the first plaintiff put up plaint B

schedule building and they were residing in that building.

Subsequently, the brother of the first plaintiff was in

occupation of the building. On 10.11.1983 in his absence

father of defendants 1 to 3, Mr.Varghese trespassed into the

plaint schedule property and started residing there. After that

the father of defendants 1 to 3 instituted O.S. No.859/83

before the 1st Additional Munsiff's Court, Neyyattinkara for

declaration of title and recovery of possession. The first

plaintiff and her mother were the defendants in that suit and

they filed written statement along with counter claim. After

trial, the suit was dismissed and counter claim was decreed by

the trial court.

3. In appeal, the dismissal of the suit was confirmed

but counter claim was dismissed, finding that it is not in proper

form. The plaintiffs are in possession of plaint A schedule RSA No.251 of 2021

property. On 22.1.2002 the defendants attempted to grab a

portion of plaint A schedule property and take possession of

the same. Hence, the suit has been filed for declaration of title

of plaint A schedule property and for recovery possession of

plaint B schedule building and for consequential injunction.

4. Defendants 1 and 2 filed written statement

contending that the suit is barred by resjudicata in view of the

decision in O.S. No. 859/1983. The B schedule is not described

in the plaint. The plaintiffs have no right title or interest in the

plaint schedule property. The purchase certificate obtained in

pursuance of S.M. Case No.263/1973 does not pertain to the

plaint schedule property. It will not bind the defendants since

they are not parties to that proceedings. The defendants have

been residing in the old building in 4 cents of property

comprised in resurvey No.292 in block No.25 corresponding to

the old survey No.324/2/16. The defendants and their

predecessors have been in absolute possession and enjoyment

of the property and building for last more than 25 years

openly, continuously and peacefully and denying the title of RSA No.251 of 2021

the plaintiffs. Thereby, they perfected title to the 4 cents of

property and the building by adverse possession and

limitation. So, the suit is barred by limitation, there was no

cause of action for filing the suit.

5. Defendants 3 and 4 remained ex-parte. PW1

examined and Exts.A1 to A6 marked from the side of the

plaintiffs. DW1 examined and Ext.B1 and B1(a) marked from

the side of the defendants. Exts.C1 and C1(a) also were

marked.

6. The learned Munsiff on appreciating the facts and

law involved found that the decision in O.S. No.859/1983 will

not operate as resjudicata, since the counter claim was

dismissed in appeal on technical ground and not on

adjudicating the case on merits. It is also found that the suit is

not barred by limitation and accordingly the suit was decreed

declaring the title of the plaintiffs and the recovery of

possession was also ordered. So, also perpetual injunction as

sought for is also granted. Aggrieved by the same, the

defendants filed appeal as A.S. No.36/2004 before the RSA No.251 of 2021

Subordinate Judge's Court, Neyyattinkara. Originally, the

appeal was dismissed by the first Appellate Court on the

ground of resjudicata.

7. The plaintiff approached this Court against the

judgment dated 21.8.2007 by filing RSA No.346/2008 and this

Court by as per the judgment dated 21.5.2020 set aside the

judgment passed by the first appellate Court and allowed the

appeal in part and remanded the case back to the first

Appellate Court, finding that the judgment and decree in the

previous suit will not operate as resjudicata, since, no

adjudication was made by the first Appellate Court on the

disputed issues and merely dismissed the suit on technical

grounds. Accordingly, the present judgment was passed by the

Sub Judge, Neyyattinkara. It has been found by the learned

Sub Judge that the earlier suit the judgment in O.S.

No.859/1983 will not operate as resjudicata and further that

the suit is not barred by limitation. Accordingly, the judgment

and decree passed by the trial court was confirmed. Aggrieved

by the same the appellants/defendants No.1 and 2 approached RSA No.251 of 2021

this Court in appeal. At the time of admission the following

substantial questions of law were framed:

1. Whether the first appellate court committed grave illegality by allowing the application preferred by respondents 1 and 2 for changing the description of plaint B schedule property by adding 4 cents of property and building therein as per the order in IA No.1 of 2020 dated 06.10.2020, which altered the nature of the case and introduced a totally different and new cause of action?

2. Whether the first appellate court went wrong in dismissing the appeal without giving an opportunity to the appellants to lead evidence consequent to the order dated 06.10.2020 in IA No.1 of 2020, causing serious prejudice to the appellants in violation of the directions and stipulations contained in the judgment in RSA No.346 of 2008?

3. Is it permissible on the part of the respondents 1 and 2 to file the present suit after having suffered a decree in a counter claim without reserving any liberty to them to file a fresh suit?

4. Is not the present suit filed by respondents 1 and 2 barred under the principles of res judicata RSA No.251 of 2021

in view of the judgment in OS No.859 of 1983 and A.S. No.368 of 1994 between the same parties in respect of the schedule property?

5. Have not the two courts below committed grave illegality in rejecting the claim of the appellants on the plea of adverse possession and limitation by excluding the period, during which the earlier suit was pending?

8. The learned counsel for the plaintiff/1 st respondent

alone appeared through Adv.R.T.Pradeep. Heard the learned

counsel for the appellants as well as the learned counsel for

the 1st respondent. Lower court records were called for and

perused.

9. The main contention of the learned counsel for the

appellants/defendants was with respect to the illegality

committed by the Appellate Court in allowing I.A. No.1/2020

dated 06.10.2020. According to them, the Appellate Court

went wrong in dismissing the appeal without giving

opportunity to the appellants to read evidence consequent to

the amendment and it has caused serious prejudice to them. It RSA No.251 of 2021

is also contended that the amendment allowed is in violation of

the directions and stipulations contained in the judgment in

RSA No.346/2008.

10. It is also contended that the present suit was barred

by Order 2 Rule 2 since they have not reserved the right to file

fresh suit while dismissing the earlier suit. It is also his

contention that the plaintiffs claim was barred by adverse

possession and limitation and grave illegality has been

committed by the courts below in excluding the period during

which the earlier suit was pending.

11. The learned counsel for the plaintiffs on the other

hand would contend that both courts concurrently found in

favour of the plaintiff and no prejudice has been caused due to

the amendment carried out as per order in I.A. No.1/2020

dated 06.10.2020, since there is specific allegation regarding

plaint A and B schedule property throughout the plaint.

12. It has been specifically pleaded in the plaint that

the plaint B schedule is the building situated in the plaint A

schedule property. Even in the description of the plaint RSA No.251 of 2021

schedule also there is specific reference of 7 cents of property

out of 16 cents situated on the western extremity and building

therein. It is only because of the fact that the term 'B

schedule' is not specifically stated in the plaint schedule it was

subsequently amended after the remand. So, no prejudice has

been caused to the defendants due to allowing the amendment

as per the order in I.A. No.1/2020.

13. On perusing the plaint schedule description also it is

seen that the plaint schedule property has been described as 7

cents of property out of 16 cents and also the building situated

therein. By the subsequent amendment B schedule property

has been separately shown as the building situated in A

schedule on its eastern extremity. So, as has been rightly

contended by the learned counsel, since there is clear

description of plaint B schedule as the building in the body of

the plaint. The amendment carried out by incorporating it as B

schedule will not cause any prejudice to the defendants.

Though, it is contended that the amendment allowed is beyond

the scope of the judgment in RSA No.346/2008, on going RSA No.251 of 2021

through the judgment in RSA No.346/2008, it could be seen

that it was an open remand with a direction to dispose the

appeal afresh and the findings in A.S. No.36/2004 with respect

to resjudicata was set aside. It is also diserniable from the

judgment in RSA No.346/2008 the first Appellate Court only

considered the question of resjudicata and reversed the finding

of the trial court and dismissed suit finding that the suit is hit

by resjudicata. So, the order passed by the first Appellate

Court after the remand in allowing I.A. No.1/2020 also cannot

be said as beyond the scope of remand order and illegal or

caused prejudice to the defendants.

14. The question of resjudicata in entertaining the

present suit in view of the judgment and decree in O.S.

No.859/1983 has already been dealt with by this Court in

judgment in RSA No.346/2008 dated 21.5.2020 by a learned

Single Judge of this Court. The judgment of first Appellate

Court in appeal from the judgment in O.S. No.859/1983 which

is marked as Ext.A5 (A.S. No.368/1994) would go to show that

for the reason that plaint B schedule building has not been RSA No.251 of 2021

specifically scheduled in the written statement wherein counter

claim has been sought for, it has been found that there is

violation of Order 7 Rule 3 and the first Appellate Court

dismissed the counter claim also and thereafter the present

suit has been filed by the plaintiff for declaration of title and

recovery of possession of plaint B schedule property and

consequential injunction.

15. Nandakumaran Kartha v. Manian and others

[2020 (2) KHC 455] has been quoted by the learned Single

Judge and the relevant portion extracted reads thus:

"S.11 CPC would come into play only when there is a finding and adjudication on a matter directly and substantially in issue in a former suit between the same parties or by any one litigating under them by a competent court. By virtue of Explanation (iv) to S.11 CPC, a matter which might or ought to have been made a ground of attack or defence in a former suit deemed to be a matter directly and substantially in issue in such suit, besides the impact of Explanation (v) to S.11 CPC. A dismissal of the suit, defect in the conduct of the suit, failure to address a defect or lack of territorial RSA No.251 of 2021

or pecuniary jurisdiction cannot be brought under the purview of S.11 of C.P.C. and the doctrine of 'res judicata' as embodied under S.11 of CPC would no come into play."

16. Since the counter claim in the earlier suit was

dismissed on a formal defect for not incorporating the B

schedule property specifically as contemplated under Order 7

Rule 3 and the dismissal was based on a technical ground

without going to the merits of the disputes as has been found

by the learned Single Judge in RSA No.346/2008, there is no

resjudicata in filing the present suit in view of the judgment

and decree in O.S. No.859/1983.

17. The next contention of the learned counsel is with

regard to the claim of adverse possession. The predecessor of

the defendants filed O.S. No.859/1983 for declaration of title,

recovery of possession and injunction. His contention was that

he was holding and enjoying the plaint schedule property.

18. The contention of the predecessor of the defendants

in O.S. No.859/1983 was that, while the first plaintiff and her RSA No.251 of 2021

mother was enjoying the plaint schedule property as per otti

kuzhikanam, document No.5256/1121, the brother of the first

plaintiff constructed a building in the plaint schedule property

and later the brother and his wife executed avakasha ozhimuri

in favour of predecessor of the defendants on 12.1.1983 for

Rs.1,750/-. Later jenmy of plaint A schedule property inclusive

of B schedule sold to the predecessor of the defendants as per

deed No.2344 dated 22.11.1983. But the defendants could not

produce that document and the suit filed by them was also

dismissed and as has been found concurrently by the courts

below, the predecessor of the defendants have no claim that

he obtained any right over the plaint A schedule property prior

to 1983. It is the specific case of the plaintiffs that the

predecessor of the defendants trespassed into the B schedule

property on 10.11.1983.

19. The defendants contended that since the plaintiffs

admitted defendants possession on 10.11.1983 they have

perfected title over the plaint B schedule property by adverse

possession and limitation.

RSA No.251 of 2021

20. Article 64 of the Limitation Act prescribes 12 years

period for prescribing title based on previous possession. Here,

the defendants predecessor alleged to have trespassed into

the property on 10.11.1983 and the defendants also claims

right over the plaint schedule property based on deed No.2344

dated 22.11.1983. But, in the earlier suit filed by the

predecessor of the defendants it has been concurrently found

against by two courts and that decision has become final as

per Ext.A5 judgment on 25.8.2000 and the present suit was

instituted in the year 2002.

21. Section 14(1) of the Limitation Act is relevant to be

extracted in this context, which reads thus:

"in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."

RSA No.251 of 2021

22. In O.S. No.859/1983 filed by the predecessor of the

defendants a counter claim was put forward by the plaintiff

and her mother. Ultimately the suit was dismissed by the trial

court and counter claim was decreed against which the

predecessor of the defendants filed the appeal and in the

appeal on technical ground the counter claim was also

dismissed. So, the plaintiff herein has been prosecuting their

right over the scheduled property by filing counter claim in

O.S. No.859/1983 and that happened to be disposed in the

year 2000. The present suit was filed in the year 2002. Hence,

as has been rightly found by the courts below the period

during which the previous suit was pending has to be excluded

from computing the period of 12 years. Hence, it has been

rightly found by the courts below that the plea of adverse

possession raised by the defendants also will not stand.

23. A contention was also raised by the learned counsel

for the defendants with respect to bar under Order 2 Rule 2,

since no liberty was obtained in A.S. No.368/1994 in filing the RSA No.251 of 2021

subsequent suit. But, it has already been discussed in the

previous paragraph that the counter claim in O.S.

No.859/1983 though decreed by the trial court it was

dismissed by the first Appellate Court as per Ext.A5 judgment

without going to the merits. Hence, the bar of resjudicata will

not apply in entertaining the present suit. So, there is no

application of Order 2 Rule 2 also in the present fact situation.

24. Hence, it has been found concurrently by the courts

below that the first plaintiff has title over the plaint A schedule

property by virtue of Ext.A1 sale deed No.943/1978. Plaint B

schedule is the part of plaint A schedule. Ext.A2 is the

purchase certificate obtained by the mother of first plaintiff

with respect to 16 cents of property which forms part of plaint

A schedule property. Though the predecessor of the

defendants set up a claim over 4 cents of property and the

building thereon by virtue of document No.2344/1983 dated

22.9.1983 it has not been produced. The defendants also could

not establish any right by way of adverse possession. So, also

the claim based on title and adverse possession are mutually RSA No.251 of 2021

destructive. Both cannot go together. The claim for declaration

of title and recovery of possession sought for by the

defendants' predecessor has already been found against in

O.S. No.859/1983 which was confirmed in Ext.A5 judgment

also. So, the appellants/defendants could not establish any

right over the plaint B schedule property. So, I do not find any

illegality or irregularity in the concurrent findings entered into

by the courts below.

In the result, the appeal is found to be devoid of any

merit and hence dismissed.

Sd/-

M.R.ANITHA JUDGE SMF