Kerala High Court

Shylaja vs Pankajakshy Amma Santhakumari on 24 May, 2024

Author: K.Babu

Bench: K. Babu

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MR.JUSTICE K. BABU
      FRIDAY, THE 24TH DAY OF MAY 2024 / 3RD JYAISHTA, 1946
                          RSA NO. 1290 OF 2005
AGAINST THE JUDGMENT DATED 30.09.2005 IN AS NO.253 OF 2001 OF
I ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF
THE   JUDGMENT   DATED    31.07.2000   IN    OS   NO.1096    OF   1994   THE
PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
APPELLANT/APPELLANT/DEFENDANT:

             SHYLAJA, D/O SANTHAMMA,
             RESIDING AT T.C. 14/1671, VAITHAZHAKATTU,
             VADIYAVILAKATHU VEEDU, VAZHUTHACAUD,
             THIRUVANANTHAPURAM.

             BY ADVS.
             SRI.P.M.JOSEPH
             SRI.R.V. Sreejith
             SMT.G.MAHESWARY(K/1688/2001)
             SMT.T.RINI(K/1194/2000)


RESPONDENTS/PLAINTIFFS:

      1      PANKAJAKSHY AMMA SANTHAKUMARI,
             T.C.14/1672, VAZHUTHACAUD, TRIVANDRUM.

      2      SANTHAKUMARI GEETHA DEVI
             T.C.14/1672, VAZHUTHACAUD, TRIVANDRUM.

             BY ADVS.
             SRI.V.SURESH
             SRI.G.SUDHEER


       THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON    24.05.2024,   THE   COURT   ON   THE   SAME   DAY     DELIVERED    THE
FOLLOWING:
 RSA No.1290 of 2005

                                       2


                                K.BABU, J.
                  -------------------------------------------
                        RSA. No. 1290 of 2005
                 ---------------------------------------------
                Dated this the 24th day of May, 2024
                               JUDGMENT

This Regular Second Appeal arises from the decree and

judgment passed by the Additional District Court,

Thiruvananthapuram in A.S.No. 253 of 2001. The appeal suit

arises from O.S.No.1096 of 1994 of the Principal Subordinate

Judge's Court, Thiruvananthapuram.

2. In the Trial Court, two suits namely O.S.No.1030/93

and O.S.No.1096/94 were jointly tried. A common judgment

was passed. The appellant and another were the plaintiffs in

O.S.No.1030/1993. The respondents were the plaintiffs in

O.S.No.1096/1994. In O.S.No.1030/1993, the respondents

herein were the defendants. In O.S.No.1096/94, the appellant

and another (her mother) were the defendants.

3. The common subject matter in the suits was 4.5

cents of land in Sy.Nos.259 and 260 of Chengazhacherry

Village which originally belonged to Smt. Kochu Amma. This

4.5 cents formed part of the larger extent of 27 cents.

Smt.Kochu Amma along with her sons and a daughter entered

into a partition deed whereby the plaint property (4.5 cents)

was set apart to the share of Ammukutty Amma ('B'schedule

in the partition deed).

4. The appellant (the plaintiff in O.S.No.1030/1993)

contended that the property was set apart to the Thavazhy of

Ammukutty Amma which retained the character of Tharavad

property. They contended that Santhamma (Respondent No.1),

Radhamma and deceased Vijayan Nair are the children of

Ammukutty Amma and the appellants along with them are the

members of the Tharavad and hence they are entitled to 1/7th

share over the Tharavad property. Therefore, in

O.S.No.1030/1993, they prayed for partition of the property

and separate possession of 2/7th share over it.

5. The respondents instituted another suit for partition

in respect of the same property as O.S.No.1096/1994. They

pleaded that the property obtained by Ammukutty Amma was

her absolute property and therefore, after the death of

Ammukutty Amma, the property devolved upon her children

Santhamma, Radhamma and Vijayan Nair. Santhamma is

respondent No.1 herein. They further pleaded that as the

whereabouts of Radhamma has not been heard of for the past

25 years or more, she is presumed to have died.

6. Based on the pleadings, the Trial Court framed the

following issues:

(1)Whether the description of the plaint property is correct.

(2)Whether the names of defendants 3 and 4 are to be struck

off from the party array.

(3)What exactly is the character of the plaint property

obtained by Ammukkutty Amma by virtue of partition

deed No.213/1955?

(4)Whether            the   parties     are   governed          by

Marumakathayam law.

(5)Is the gift deed dated 11.12.75 executed by first defendant

in favour of the 6th defendant valid?

(6)Have defendants 5 and 6 got exclusive right over the

building situated in the plaint property?

(7)Whether the plaint property is liable to be partitioned.

(8)What are the correct shares to which the parties are

entitled?

(9)Reliefs and costs.

(1)Is the suit bad for non joinder of necessary parties?

(2)Whether the first plaintiff is the wife and the second

plaintiff the daughter of deceased Vijayan Nair.

(3)Have the plaintiffs got any legal right to claim

partition of the plaint schedule property?

(4)In case of partition what shall be the correct proportion of

shares and who are all entitled to?

(5)Reliefs and costs.

7. The Trial Court found that Ammukutty Amma had

absolute right over the property that she obtained as per the

partition deed and after her death, the right over the same

devolved upon her children namely Santhamma, Radhamma

and Vijayan Nair. The contention of the appellant that the

property was the Thavazhy property was repelled. The Trial

Court passed a common judgment whereby a preliminary

decree was drawn directing partition of the property in to two

equal halves, allotting one half to the plaintiffs in

O.S.No.1096/94 and the other half to the first plaintiff in

O.S.NO.1030/93 for and an behalf of the first defendant.

8. Two appeals were filed challenging the common

judgment. In A.S.No.253/2001 the appellant challenged the

decree in O.S.No.1096 of 1994. The appellant challenged the

decree in O.S.No.1030/199 by filing A.S.No.157/2001.

A.S.No.157/2001 was dismissed on 12.09.2002 for want of

prosecution. As there was no appeal challenging the decree

and judgment in O.S.No.1030/1993, the First Appellate Court

found that A.S.No.253/2001 is not maintainable as it is barred

by the principle of resjudicata.

9. This Court admitted the regular second appeal on

the following substantial question of law:-

"Is the decision of the Appellate Court with regard

to the question of resjudicata right, since one of

the appeals is dismissed for default?"

10. The learned counsel for the appellant contended

that the finding of the First Appellate Court on the question of

resjudicata is erroneous.

11. The learned counsel for the respondents submitted

that A.S.No.253/2001, the appeal suit prosecuted before the

First Appellate Court was not maintainable due to the finality

of the finding of the Trial Court in O.S.No.1030/1993.

12. The plaint schedule property, the subject matter in

the suits is 4.5 cents of land which was set apart to the share

of Ammukutty Amma as per partition deed No.213/1955. The

dispute in the suits centred around the question of whether

the plaint schedule property was the Tharavad property of the

Thavazhi of Ammukutty Amma. The Trial Court found that

Ammukutty Amma had absolute right over the property. Based

on this finding the Trial Court passed a common judgment

whereby a preliminary decree was passed directing partition

of the plaint schedule property as mentioned above.

A.S.No.157/2001, the appeal challenging the decree in

O.S.No.1030/1993 was dismissed for non-prosecution.

A.S.No.253/2001 the appeal challenging the decree in O.S.No.

1096/1994 was dismissed by the First Appellate Court on the

ground that it is hit by the principle of res judicata. The only

question to be considered is whether the principle of res

judicata is applicable when one of the appeals is dismissed for

default.

13. I may refer to Section 11 CPC which deals with res

judicata. The Section reads thus:-

"11.Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.

*** *** *** *** "

14. To attract the rule of res judicata, the following

conditions are to be satisfied:-

(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;

(ii) The former suit must have been a suit between the same parties or between, parties under whom they or any of them claim;

(iii) The parties must have litigated under the same title in the former suit;

(iv)The court which decided the former suit must be a court competent to try the subsequent suit or the suit in which such issue is subsequently raised;

(v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

15. The doctrine of res judicata encapsulates the basic

principles in all judicial systems, which provide that an earlier

adjudication is conclusive on the same subject matter

between the same parties. When once there has been a

decision between the parties to a suit, this rule will preclude

the trial of a fresh suit for the same relief between the same

parties. This is the case with the defendants setting up the

same plea in the subsequent suit between the same parties.

16. When a decree passed by the trial Court on merits

is challenged in appeal and the appeal is dismissed on a

preliminary ground or for default, the result is the confirmation

of the decision of the trial court on the merits. Then the result

is that the matter directly and substantially in issue in such

proceeding has been heard and finally decided there.

17. Where a common judgment in two suits wherein

the matters directly and substantially in issue being the same

are taken up in appeal by way of two appeals, the main

question involved would become final with the dismissal of

one of the appeals though the dismissal may not be on merits

and then the trial of the remaining appeal is hit by the

principle of res judicata?

18. The Apex Court considered this question in

Sheodan Singh v. Daryao Kunwar [AIR 1966 SC 1332]. In

this case, the trial Court consolidated four suits and disposed

of the same by way of a common judgment. The appellants

therein filed two first appeals as Appeal Nos.356/1951 and

366/1951 challenging the decree in two suits before the High

Court and also filed Appeal Nos.451/1951 and 452/1951

before the District Court challenging the decree in the other

two suits.

19. In Sheodan Singh v. Daryao Kunwar, the High

Court had not heard and finally decided the appeals. Both the

appeals were dismissed on preliminary grounds. When the

question whether the dismissal of the appeal on preliminary

grounds would operate as res judicata to try the other appeals

was considered the Apex Court held thus:-

"....Where a decision is given on the merits by the Trial

Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the Trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."

20. The Apex Court further held thus:-

"....Our conclusion on the question of res judicata raised in the present appeals is this. (Where the trial court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial court's decision stands confirmed, the decision of the appeal court will be res judicata and the appeal court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal court is to confirm the decision of the trial court given on merits, and if that is so, the decision of the appeal court will be resjudicata whatever may be the reason for the dismissal. It would be a different matter, however, where the decision of the appeal court does not result in the confirmation of the decision of the trial court given on the merits, as for example, where the appeal court holds that the trial court had no jurisdiction and dismisses the appeal even though the trial court might have dismissed the suit on the merits.) In this view of the matter, the appeals must fail, for the trial court had in the present case decided all the four suits on the merits including,the decision on the common issues as to title. The result of the dismissal on a preliminary ground of the two appeals arising out of suits Nos. 77 and 91 was that the decision of the trial court was confirmed

with respect to the common issues as to title by the High Court. In consequence the decision on those issues became resjudicata so far as appeals Nos. 365 and 366 are concerned and s. 11 of the Code of Civil Procedure would bar the hearing of those common issues over again. It is not in dispute that if the decision on the common issues in suits Nos. 77 and 91 has

become res judicata, appeals Nos. 365 and 366 must fail.

21. A Full Bench of this Court in Janardhanan

Pillai v. Kochunarayani Amma [1976 KLT 279 (F.B.)] held

thus :

"10. .............. The rule applies not only to Original Suits but also to appeal suits. .......

11. If there are two suits in which the matter directly and substantially in issue are the same that the earlier decision in one of the suits bars a fresh decision in the other suit is evident from the provisions in S.11 of the Code of Civil Procedure. Therefore, when there are two suits in which substantially the same question arises for decision and they are decided by a common judgment or by judgment in the main case that being incorporated in the second case and when only one of the judgments is subjected to appeal what would be the effect of the failure to appeal against the other judgment? Could it be said that these two judgments, having been rendered at the same time, one cannot be said to be the decision in a former suit? It is true that the party has right of appeal against the decision in both the suits and if such right of appeal is exercised in regard to only one of the decisions, does the other decision become final so as to debar an independent consideration of the appeal so taken? These are the questions which call for examination in these Second Appeals.

12. In cases where two or more suits between the same parties relating substantially to the same matter are decided and only one of them is challenged by way of appeal, we fail to see how it can be said that the decisions are simultaneous and hence there can be no bar of res judicata. If the party takes up in appeal only one of the decisions, the others become final. The question, then, for consideration would be whether these decisions which have become final operate as res judicata. The question of res judicata would arise for determination only when the appeal against the connected decision is taken up for consideration. That will

necessarily be at a subsequent point of time. At that moment there would be earlier decisions which have become final. The question whether the decision from which appeal has been filed and the decisions which have become final were rendered simultaneously would then be really irrelevant. Within the meaning of Explanation I of S.11 of the Code of Civil Procedure the decision which becomes final by being not appealed against becomes an earlier decision in a matter directly and substantially in issue in the former suit and operates as res judicata. This is notwithstanding the very serious consequences that the party who has filed appeal against one only of the two decrees may have to face. It is not as it his right of appeal becomes unavailable to him because of the bar of res judicata. He has the right to have his appeal taken up and considered, but he cannot get relief to the extent the question in issue which calls for decision in the appeal cannot be considered on the merits by reason of the bar of res judicata. The very rule of res judicata is a technical rule which precludes a party who may have a case from prosecuting his case with a view to obtain relief. It serves the larger interest of public policy by promoting the rule that there must be an end to litigation and a security to the litigant. No man should be vexed twice over the same cause is a rule founded on ancient precedents dictated by wisdom. 11 the party to the decree would be bound by the decree if he does not challenge the decree he must face the consequences of his failure to appeal against it, such consequence being the finality thereof. Such finality would debar a decision afresh on the question even if it be in an appeal against a simultaneous decision. ......

19. We do not find any logic which compels us to adopt the view that an earlier decision in a former suit may not operate as res judicata in the event that decision was reached simultaneously with the decision in the suit from which the appeal is taken. That would be, it appears to us, against the plain provision in S.11 of the Code of Civil Procedure. The question whether the plea of res judicata is available is to be decided with reference to the time the matter comes up for consideration and if by that time there is an earlier decision by a competent court between the same parties which has become final and the question is directly and substantially the same such earlier decision would operate as res judicata barring a fresh decision by the appellate Court. ................................"

22. In the present case, the subject matter in the two

suits was one and the same. The appellant claimed that the

property involved was the Thavazhy property of the family

whereas the respondents claimed that it was the absolute

property of their predecessors. A decision on these rival

contentions was essentially the foundational issue in the suits

on which the Trial Court arrived at a decision leading to the

common judgment and decree in O.S.No.1030/1993 and

O.S.No.1096/1994. The dismissal of A.S.No.157/2001 for non-

prosecution amounted to the finality of the findings of the trial

Court in O.S.No.1030/1993.

23. The resultant conclusion is that the appeal filed