Kerala High Court
*Chandran vs Srikannika Parameswari Amman Devaswom on 19 June, 2025
FAO (RO) NO. 108 OF 2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
FAO (RO) NO. 108 OF 2015
AGAINST THE JUDGMENT DATED 19.03.2015 IN AS NO.223 OF 2008 OF
ADDITIONAL DISTRICT COURT -I,PALAKKAD
ARISING OUT OF THE JUDGMENT DATED 11.04.2008 IN OS NO.618 OF 2004
OF ADDITIONAL MUNSIFF COURT, PALAKKAD
APPELLANTS IN F.A.O. - RESPONDENTS 1 & 4 IN A.S.- DEFENDANTS 1 & 4 IN
SUIT:
1 CHANDRAN (DIED)(LEGAL HEIRS IMPLEADED AS ADDL.A3 TO A6)
S/O. LATE RAMANKUTTY MANNADIAR, AGED 62,
RESIDING AT PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK
PIN 678 001.
2 GOPINATH (DIED) (LEGAL HEIRS IMPLEADED AS ADDITIONAL
RESPONDENTS 17 TO 19)
S/O. LATE RAMANKUTTY MANNADIAR, AGED 69,
RESIDING AT PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK
PIN- 678 001.
ADDL A3 PADMINI C,
W/O.CHANDRAN,AGED 65,RESIDING AT PATTIKKARA,KOPPAM
AMSOM,PALAKKAD TALUK,PIN-678 001.
ADDL A4 RAJESH C
S/O.CHANDRAN,AGED 45,RESIDING AT PATTIKKARA,KOPPAM
AMSOM,PALAKKAD TALUK,PIN-678 001.
ADDL A5 RADHIKA C
D/O.CHANDRAN,AGED 43,RESIDING AT PATTIKKARA,KOPPAM
AMSOM,PALAKKAD TALUK,PIN-678 001.
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ADDL A6 DHANYA C.,
D/O.CHANDRAN,AGED 65,RESIDING AT PATTIKKARA,KOPPAM
AMSOM,PALAKKAD TALUK,PIN-678 001.
[THE LEGAL HEIRS OF THE DECEASED APPELLANT NO.1 ARE
IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 6 AS PER THE ORDER
DATED 30/5/2025 IN I.A.1/2022].
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.M.NEELAKANDAN
SHRI.S.NITHIN (ANCHAL)
SRI.SABU GEORGE
SRI.P.B.SUBRAMANYAN
SRI.MANU VYASAN PETER
RESPONDENTS IN F.A.O.- APPELLANT & RESPONDENTS 2, 3 AND 6 TO 16 &
SUPPL.RESPONDENTS 16 TO 18 IN A.S.- PLAINTIFF & DEFENDANTS 2, 3, 7 TO 10
& SUPPL.DEFENDANTS 11 TO 16 & L.RS OF DEFENDANT NO.5 IN THE SUIT:
1 SRI KANNIKA PARAMESWARI AMMAN DEVASWOM
REPRESENTED BY ITS MANAGING TRUSTEE R. RAJASEKHAR,
S/O. RANGANATHAN CHETTIAR, AGED 62, RESIDING AT NOORANI,
PALAKKAD - 678 004.
2 MOHANAN
S/O. LATE RAMANKUTTY MANNADIAR, AGED 55, RESIDING AT
PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK, PIN - 678 001.
3 THANKKAMMA (DIED) (LR'S RECORDED)
W/O. LATE RAMANKUTTY MANNADIAR, AGED 93, RESIDING AT
PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK, PIN - 678 001.
4 GIRIJA
D/O. LATE RAMANKUTTY MANNADIAR, AGED 47, RESIDING AT
PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK, PIN - 678 001.
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5 LEELA
D/O. LATE RAMANKUTTY MANNADIAR, AGED 59, RESIDING AT
PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK, PIN - 678 001.
6 JYOTHI
D/O. LATE RAMANKUTTY MANNADIAR, AGED 49, RESIDING AT
PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK, PIN - 678 001.
7 KUMARI
D/O. LATE RAMANKUTTY MANNADIAR, AGED 45, RESIDING AT
PATTIKKARA, KOPPAM AMSOM, PALAKKAD TALUK, PIN - 678 001.
8 VASU
S/O. LATE VESA, AGED 52, KOPPAM AMSOM, PATTIKKARA,
PALAKKAD - 678 001.
9 SATHYAN
S/O. LATE VESA, AGED 48, KOPPAM AMSOM, PATTIKKARA, PALAKKAD
PIN- 678 001.
10 PRAKASH
S/O. LATE VESA, AGED 44, KOPPAM AMSOM, PATTIKKARA, PALAKKAD
PIN- 678 001.
11 SANTHI
D/O. LATE VESA, AGED 42, KOPPAM AMSOM, PATTIKKARA,
PALAKKAD - 678 001.
12 AMBIKA
D/O. LATE VESA, AGED 51, KOPPAM AMSOM, PATTIKKARA,
PALAKKAD - 678 001.
13 GEETHA
D/O. LATE VESA, AGED 43, KOPPAM AMSOM, PATTIKKARA,
PALAKKAD - 678 001.
14 RADHAMANI
W/O. MANI @ MANIKANDAN, AGED ABOUT 50, RESIDING AT KANNIKA
PARAMESWARI THERUVU, PATTIKKARA, PALAKKAD - 678 001.
15 NEETHU
D/O. MANI @ MANIKANDAN, AGED 24, RESIDING AT KANNIKA
PARAMESWARI THERUVU, PATTIKKARA, PALAKKAD - 678 001.
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16 SOWMYA
D/O. MANI @ MANIKANDAN, AGED 21, LATE A MINOR NOW A MAJOR,
RESIDING AT KANNIKA PARAMESWARI THERUVU, PATTIKKARA,
PALAKKAD - 678 001.
ADDL R17 RJALAKSHMI,
D/O.GOPINATH,AGED 50,RESIDING AT ERATTU
HOUSE,PATTIKKARA,KOPPAM AMSOM,PALLITHERUVU POST, PALAKKAD
TALUK,PIN-678 001.
ADDL R18 SHOBA
D/O.GOPINATH,AGED 48,RESIDING AT ERATTU
HOUSE,PATTIKKARA,KOPPAM AMSOM,PALLITHERUVU POST, PALAKKAD
TALUK,PIN-678 001.
ADDL R19 ADDL R19:SINDHU,
D/O.GOPINATH,AGED 43,RESIDING AT ERATTU
HOUSE,PATTIKKARA,KOPPAM AMSOM,PALLITHERUVU POST, PALAKKAD
TALUK,PIN-678 001.
[THE LEGAL HEIRS OF THE DECEASED APPELLANT NO.2 ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 17 TO 19 AS PER ORDER
DATED 30/5/25 IN IA 3/2022].
[IT IS RECORDED THAT R4 TO R7 ARE THE LEGAL REPRESENTATIVES
OF THE DECEASED R3 AS PER ORDER DTD 5/8/19 IN MEMO DATED
27-07-2019].
BY ADVS.
SRI.GEEN T.MATHEW
SHRI.O.RAMACHANDRAN NAMBIAR
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD
ON 19.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. The defendants 1 & 4 in a suit for recovery of possession are
the appellants. The suit was filed by one Devaswom
represented by its Managing Trustee for recovery of possession
of the plaint schedule property, which is a tiled house bearing
Door No.21/726 in Sy No.2443 and the appurtenant land
having measurements of 9 X 5 Six Feet Kole, from the
defendants 1 to 10. Plaintiff claims that the said property was
purchased as per Ext.A2 by the plaintiff from one Kuppuswamy
Pillai and wife; that the first defendant and his father
Ramankutty Mannadiar obtained lease of the property as per
Ext.A3 Lease Deed of the year 1977 on a monthly rent of Rs.25/-
and that on the death of Ramankutty Mannadiyar, his right
devolved is upon the defendant Nos.1 to 10.
2. The suit was resisted by the defendants raising several
contentions including the plea of res-judicata as according to
the defendants the subject matter was directly and
substantially in issue in two earlier suits i.e. O.S.Nos.50/1982
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& 147/1988 before the Sub Court, Palakkad in which the
plaintiff and the 1st defendant were parties.
3. The Trial Court dismissed the suit holding that the suit is
barred by res judicata and that the finding of adverse
possession and limitation in favour of the 1st defendant in the
earlier suit is binding on the plaintiff and the plaint schedule
property.
4. On appeal filed by the plaintiff, the First Appellate Court found
that the suit is not barred by res judicata. Accordingly, the
judgment and decree passed by the Trial Court were set aside
and the matter was remanded back to the Trial Court for
consideration, except the question of res judicata.
5. This Appeal is filed challenging the remand order passed by the
First Appellate Court.
6. I heard the learned Senior Counsel for the appellants,
Sri. S.V. Balakrishna Iyer, instructed by Sri. Sabu George and
the learned counsel for the first respondent/plaintiff,
Sri. O. Ramachandran Nambiar.
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7. The learned Senior Counsel for the appellants contended that
since the question of res judicata is a mixed question of law and
fact, when the First Appellate Court found it fit to remand the
matter, there should have been an open remand to consider all
questions, including res judicata.
8. On the other hand, the learned counsel for the respondent
contended that the Trial Court answered the question of res
judicata after a full-fledged trial; that the First Appellate Court
considered whether the finding of the Trial Court with respect
to the question of res judicata is correct or not and entered a
finding thereon. Since the First Appellate Court set aside the
finding of the Trial Court with respect to res judicata on valid
grounds, there is nothing to be reconsidered on the question of
res judicata.
9. On going through the records available in this case, I find that
the plaintiff in the present suit was the additional
23rd defendant and the first defendant herein was the
additional 20th defendant in O.S.No.50/1982. O.S.No.50/1982
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was filed by one P.M. Natarajan for partition. The plaint
schedule item No.1 property therein was 48 cents of land in
Survey No.2443 of Koppam Village. The additional 20th
defendant therein claimed right over a part of the plaint
schedule item No.1 property. As per Ext.B10 judgment, the
Trial Court therein found that the claim of the plaintiff is barred
by adverse possession and limitation. The said judgment was
confirmed in Ext.B12 judgment. After the disposal of
O.S.No.50/1982, another family member of the plaintiff in
O.S.No.50/1982, filed O.S.No.147/1988 for partition. In the said
suit, the very same plaint schedule item No.1 property was
included, but showing a different extent as 64 cents. In the said
suit, the plaintiff herein was the defendant No.89 and the first
respondent herein was the defendant No.87. There also, as per
Ext.B11 judgment, the Trial Court upheld the plea of adverse
possession raised by the defendant No.87 therein. On going
through the judgments in both these suits, it is seen that there
was no conflict of interest between the respective plaintiffs
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therein and the first defendant herein, in those suits. The issue
decided was between the respective plaintiffs in the said suits
and the first defendant herein. Any question relating to the
dispute between the plaintiff herein and the 1st defendant
herein was not directly and substantially in issue in those suits.
Hence, whatever be the findings arrived at in those suits are
between the plaintiffs therein and the defendants therein. It
could not be imported into the present suit to raise a question
of res judicata between the plaintiff herein and the first
defendant herein, who were the co-defendants in the said suits.
It appears that the plaintiff herein and the 1st defendant herein
were claiming different properties in those suits. The learned
counsel for the contesting respondent points out that since
there was no plan available in those suits identifying the
properties, the identity of the properties could not be finally
said. Whatever be the contentions regarding the identity of the
properties, the First Appellate Court was right in holding that
the findings in the said suits between the plaintiff in those suits
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and the first defendant herein could not be taken in support of
the plea of res judicata in the present suit. I do not find any
illegality in the findings of the First Appellate Court. No
substantial question of law arises in the matter. Accordingly,
the Appeal is dismissed.
10. The parties are directed to appear before the Trial Court
on 30.07.2025.
Sd/-
M.A. ABDUL HAKHIM
JUDGE
shg/
