Kerala High Court
Kaithakkal Jose vs Nedumpallil Valsamma on 28 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
RSA NO. 242 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 26.02.2011 IN OS
NO.163 OF 2008 OF MUNSIFF COURT, PAYYANNUR
ARISING OUT OF THE JUDGMENT AND DECREE DATED 18.11.2023
IN AS NO.31 OF 2011 OF SUBORDINATE JUDGE'S COURT,
PAYYANNUR
APPELLANT/APPELLANT/PLAINTIFF:
KAITHAKKAL JOSE, AGED 70 YEARS
S/O. CHANDY, AGRICULTURE, VAYALAYI, PULINGOME
AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT,
PIN - 670511
BY ADVS.M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENTS/RESPONDENTS AND SUPPLEMENTAL RESPONDENTS/
DEFENDANT NOS.2 AND 3 AND LEGAL HEIRS OF 1ST DEFENDANT:
1 NEDUMPALLIL VALSAMMA
AGED 74 YEARS
W/O. JOHN, AGRICULTURE, VAYALAYI,
PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR
DISTRICT, PIN - 670511
2 THE SECRETARY
CHERUPUZHA GRAMA PANCHAYAT, CHERUPUZHA,
KANNUR DISTRICT, PIN - 670511
3 SHERIN
AGED 49 YEARS
D/O. NEDUMPALLIL JOHN, NO EMPLOYMENT, RESIDING AT
VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA,
KANNUR DISTRICT, PIN - 670511
4 ROJIN,
AGED 46 YEARS
D/O. NEDUMPALLIL JOHN, NO EMPLOYMENT, RESIDING AT
VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA,
KANNUR DISTRICT, PIN - 670511
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.S.A.No.242 of 2024
2
C.S.SUDHA, J.
----------------------------------
R.S.A.No.242 of 2024
-------------------------------------------------
Dated this the 28th day of May 2024
JUDGMENT
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the plaintiff/appellant is against the
judgment and decree dated 18/11/2023 in A.S.No.31/2011 on the
file of the Subordinate Judge's Court, Payyannur, which appeal in
turn is against the judgment and decree dated 26/02/2011 in
O.S.No.163/2008 on the file of the Munsiff Court, Payyannur.
The parties and the documents will be referred to as described in
O.S.No.163/2008.
2. The suit was filed by the plaintiff/appellant against the
defendants/respondents seeking declaration and consequential
injunction. According to the plaintiff, his father obtained three
acres of property as per purchase certificate no.18248/1976 issued
in O.A.No.6209/1976 by the Land Tribunal, Taliparamba. Out of
the said three acres, the plaint A schedule property was gifted to
the plaintiff as per document no.2151/2004 of S.R.O., Peringome.
Since then the plaintiff has been in possession and enjoyment of
the property. The properties of defendants 1 and 2 are situated on
the eastern and western side of the plaint A schedule property. The
river on the northern side of the plaint A schedule property is
vested in the third defendant panchayat. The plaint B schedule,
part of plaint A schedule property, is not river puramboke.
2.1. Defendants 1 and 2 filed a false suit, that is,
O.S.No.114/1988, alleging attempt of trespass into their property
by the plaintiff's father. Before filing the said suit, defendants 1
and 2 colluding with the then Taluk Surveyor, Taliparamba in an
application to fix the northern boundary of the property, removed
some of the survey stones and fixed the survey boundary about 75
links to the further south of the existing survey boundary, which
was against the field measurement book and plan. On the basis of
the wrong fixation of the boundary line, O.S.No.114/1988 came to
be partly decreed in favour of defendants 1 and 2. First appeal,
A.S.No.3/1991 and the second appeal, S.A.No.714/1995 affirmed
the decree of the trial court. The judgment of the second appeal
was dated 07/04/2008. By misusing the order of injunction
obtained in O.S.No.114/1988, defendants 1 and 2 committed
damage in the property. After the survey boundary had been
wrongly fixed by the then Taluk Surveyor, Taliparamba, the
Tahsildar as per notice dated 15/08/1988 informed the parties that
the northern survey line of R.S.No.90/1 had been re-fixed and any
person aggrieved by the same could file an appeal before the
District Survey Superintendent. Accordingly, the plaintiff's father
filed ALC.86/88 D8. Pursuant to the same, the District Survey
Superintendent measured the property and refixed the survey line
and survey stones in accordance with the field measurement book
and passed an order to the said effect on 20/10/1992. These facts
had been reported by the Advocate Commissioner in
O.S.No.132/1991 filed by the plaintiff's father. It was only
because the Advocate Commissioner in O.S.No.114/1988
inspected the property when the survey stones and the survey
boundary had been wrongly fixed by the Surveyor, he happened to
submit a report and plan based on the wrong survey boundary, on
the basis of which the suit came to be wrongly decreed in favour
of defendants 1 and 2. The plaintiff's father was unable to bring
the real facts to the notice of the appellate court including the re-
fixation of the survey boundary and hence the decree of the trial
court came to be wrongly confirmed by the appellate courts also.
In none of the earlier cases, third defendant panchayath was a
party. The decree passed in O.S.No.114/1988 and confirmed in
the first and the second appeals, has cast a cloud on the title and
possession of the plaintiff over the plaint schedule property and
therefore the suit for declaring that the survey boundary shown by
the Advocate Commissioner in O.S.No.132/1991 to be the actual
survey boundary. As the panchayath was not a party in the earlier
proceedings, there is no bar in filing a fresh suit and hence the
suit.
3. Defendants 1 and 2 filed written statement denying the
claim of the plaintiff over the plaint 'A' Schedule property.
According to them, the plaintiff's father never obtained any title
over the property. Gift deed no.2151/2004 relied on by the
plaintiff was also disputed by the defendants on the ground that
the plaintiff's father had no right to transfer the property to the
plaintiff. The gift deed was created for the purpose of the suit and
the plaintiff has not obtained any right or possession over the
property. The defendants filed O.S.No.114/1988 when the
plaintiff's father tried to trespass into their property. The said suit
was decreed. The decree of the trial court was confirmed by the
appellate courts also. After S.A.No.714/2005 was dismissed on
07/04/2008, the present suit has been filed raising false
allegations. The plaintiff's father had filed three other suits also
against the defendants, namely, O.S.No.208/1999,
O.S.No.349/2001 and O.S.No.110/2002. All the said suits were
tried jointly and dismissed. Appeals against the said decree,
namely A.S.No.112/2003, A.S.No.113/2003 and A.S.No.114/2003
filed against the said judgment and decree are pending. A portion
of the plaint schedule property in the suits filed by the plaintiff's
father was transferred to the plaintiff. The gift deed relied on by
the plaintiff was created for the purpose of creating a fresh cause
of action. The allegation that the defendants had colluded with the
then Taluk Surveyor, Taliparamba and had got the survey
boundary wrongly fixed is incorrect and false. O.S.No.110/2002
had been filed by the plaintiff's father for a declaration that the re-
fixation of the survey boundary as per the order of the District
Survey Superintendent, was infact the actual survey boundary.
The said suit after trial was dismissed. The subject matter in the
present suit and in the suits filed by the plaintiff's father is one and
the same and hence the suit is barred by res judicata.
4. The third defendant panchayath filed written statement
denying the allegations in the plaint and also contending that the
suit is barred by res judicata as the dispute relating to the subject
matter had already been adjudicated in O.S.No.114/1988 which
judgment and decree has obtained finality in Second Appeal
No.714/1998.
5. Necessary issues were framed by the trial court and the
parties went to trial on the basis of the aforesaid pleadings. PW1
to PW3 were examined and Exts.A1 to A12 were marked on the
side of the plaintiff. No oral evidence was adduced by the
defendants. Exts.B1 to B3 were marked on the side of the
defendants. The report and plan of the Advocate Commissioner
were marked as Exts.C1 to C3.
6. The trial court on an appreciation of the oral and
documentary evidence, rejected the contentions of the plaintiff and
held that the relief sought for in the present suit and in the earlier
suits filed by the plaintiff's predecessor-in-interest, who is none
other than his father, was one and the same and hence the suit is
barred by res judicata. The trial court also found that the suit is
barred by limitation and that plaintiff had failed in establishing the
identity of the property. The judgment and decree of the trial court
has been confirmed by the first appellate court against which the
present second appeal has been filed.
7. Heard the learned counsel for the appellant/plaintiff.
8. According to the learned counsel both the trial court as
well as the appellate court grossly erred in holding the suit to be
barred by the principle of res judicata. Relying on the dictum in
Vaish Aggarwal Panchayat v. Inder Kumar, [(2020)12 SCC
809] it was argued that when a decree has been obtained by fraud,
the principle of res judicata is not applicable. It was also
submitted that the earlier decree happened to be passed in favour
of defendants 1 and 2 due to the fraudulent act of the then Taluk
Surveyor, Taliparamba, in wrongly fixing the survey boundary. To
a query by this Court as to whether his predecessor-in-interest had
raised such a contention in the earlier suits, it was submitted that
though raised, it was never considered by the trial court or the
appellate court and hence there is no bar in filing the present suit.
If such a contention had been taken up and the same had not been
considered by the trial court, the same ought to have been
challenged in the appeal. Instead of resorting to said course, the
plaintiff cannot file a fresh suit on the ground of fraud alleged to
have been committed by the Taluk Surveyor in wrongly fixing the
survey boundary. The case of the plaintiff is not that the decree in
the earlier suits was obtained by fraud or collusion between the
parties to the litigation. On the other hand, his case is that the
survey boundary line was wrongly fixed by the then officer
concerned colluding with defendants 1 and 2. Therefore the
dictum relied on by the learned counsel for the plaintiff/appellant
is not applicable to the facts of the present case.
9. The plaintiff/appellant does not dispute the fact that the
property/subject matter involved in the present suit and the earlier
suits is one and the same. It is also admitted that the earlier suits
have been filed by the father of the plaintiff and that it was
subsequent to the same and after the decree in the second appeal,
the gift deed was executed by the father in favour of the plaintiff
relating to a portion of the disputed property. It is also not
disputed that the relief claimed in the present suit is the very same
relief claimed by his father from whom he obtained plaint A
schedule property. As per Section 11 CPC, the principle of res
judicata comes into play when the matter was 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 the subsequent
suit or the suit in which such issue had been subsequently raised
and has been heard and finally decided by such Court. The
plaintiff has no case that the courts which decided the earlier suits
were not competent. Admittedly the earlier suits were filed by the
plaintiff's father through whom the plaintiff claims title and
possession over the disputed property. The property or the subject
matter involved in the present suit and the earlier suits are also
admittedly the same. That being the position, the principle
contemplated under Section 11 CPC is clearly attracted. The trial
court and the first appellate court has properly and correctly
appreciated the oral and documentary evidence in arriving at such
a conclusion.
10. In addition to the above, the trial court has also found
the suit to be barred by limitation. Before the first appellate court,
the challenge was confined to the finding of the trial court that the
suit was hit by res judicata. The remaining challenges raised
against the judgment and decree were not pressed at the time of
hearing. In the appeal memorandum it is alleged that the
plaintiff/appellant had never authorised his lawyer to give up the
said contentions and without his instructions, the lawyer had no
right to give up such contentions. Reference has been made to the
dictum in Jayaprakash K.R. v. State of Kerala (2023(4) KHC
354) to canvass the point that a wrong concession/statement/
admission/compromise/settlement made without obtaining
instructions from the client would not bind the party.
11. I find no reason to disbelieve the first appellate court
that except for the challenge against the finding of bar of res
judicata, the remaining contentions had been given up by the
plaintiff at the time of arguments. However, for argument sake, I
shall assume for a moment that the said argument is right and
proceed to consider the plea of limitation. The trial court found
that as per Article 58 of the Limitation Act, 1963, the period of
limitation starts when the right to sue first accrued. It was noticed
that nowhere in the plaint, the date when the cause of action arose
had been mentioned. In the absence of specific pleadings to the
said effect, the trial court examined and analysed the entire
pleadings to ascertain the alleged cause of action. Going by the
averments in the plaint, the Taluk Surveyor is stated to have
wrongly fixed the survey boundary, which was rectified as per
order dated 20/10/1992 of the District Survey Superintendent.
The plaintiff never had a case that he was not aware of the fixation
or refixation of the survey boundary till the filing of the present
suit or that he came to know about the fixation of the boundary
much later on. As noticed earlier in O.S.No.110/2002 filed by the
plaintiff's father, the relief sought for was to declare that the order
of the District Survey Superintendent refixing the survey boundary
was the correct boundary. The said suit was admittedly
dismissed. The trial court therefore found that the cause of action
in the present suit which is the same as in the earlier suits filed by
the father of teh plaintiff, had arisen in the year 1992 itself.
However, the present suit was filed only in the year 2008 and
therefore the suit was clearly barred by limitation. I do not find
any error or mistake committed by the trial court in arriving at
such a finding. Both the courts on a thorough appreciation of the
oral and documentary evidence has rightly arrived at the
conclusion that the suit is barred by res judicata ; filed beyond the
period of limitation and also that the plaintiff had failed in
establishing the identity of plaint B schedule property. No
substantial questions of law as contemplated under Section 100
arises in this second appeal and hence the appeal is liable to be
dismissed in limine and I do so.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
