Kerala High Court

K.I.Mohammed vs Sainabi on 28 October, 2025

Author: Sathish Ninan

Bench: Sathish Ninan

                                                          2025:KER:80496

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                   &

             THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR

    TUESDAY, THE 28TH DAY OF OCTOBER 2025 / 6TH KARTHIKA, 1947

                          RFA NO. 723 OF 2015

        AGAINST THE JUDGMENT AND DECREE DATED 05.06.2015 IN OS NO.7

               OF 2012 OF DISTRICT COURT, LAKSHADWEEP

                                 -----

APPELLANT/PLAINTIFF:

           K.I.MOHAMMED,
           S/O.ABUBACKER, AGED 58 YEARS, KADAPURATHAILLAM,
           KAVARATTI - 683 555.

           BY ADVS.
           SRI.V.V.ASOKAN (SR.)
           SHRI.C.S.ABDUL SAMMAD
           SHRI.K.I.MAYANKUTTY MATHER (SR.)
           SRI.P.RAHUL



RESPONDENTS/DEFENDANTS:

    1      SAINABI, [DIED; LRs IMPLEADED]*2
           D/O.MOHAMMED, PALAMKAKKADA BEEMAPURA, AGED 73 YEARS,
           ASHIYAMMAKKADA, KAVARATTI ISLAND - 682 555,
           LAKSHADWEEP.

    2      MUTHUKOYA,
           S/O.SULIKA, PALAMKAKKADA BEEMAPURA, AGED 66 YEARS,
           KAVARATTI ISLAND - 682 555, LAKSHADWEEP.

    3      AHAMMED,
           S/O.SULIKA, PALAMKAKKADA BEEMAPURA, AGED 66 YEARS,
           KAVARATTI ISLAND - 682 555, LAKSHADWEEP.
                                                       2025:KER:80496

RFA NO. 723 OF 2015              -2-


    4     ABUBAKER,
          S/O.SULIKA, PALAMKAKKADA BEEMAPURA, AGED 60 YEARS,
          KAVARATTI ISLAND - 682 555, LAKSHADWEEP.

    5     SARABI,
          D/O.SULIKA, PALAMKAKKADA BEEMAPURA, AGED 55 YEARS,
          KAVARATTI ISLAND - 682 555, LAKSHADWEEP.

    6     HABUSABI,
          D/O.KALID CHANAPURA, AGED 58 YEARS, KAVARATTI ISLAND -
          682 555, LAKSHADWEEP.

    7     MUTHUKOYA,
          S/O.KALID CHANAPURA, AGED 51 YEARS, KAVARATTI ISLAND -
          682 555, LAKSHADWEEP.

    8     JAMEELABI,
          D/O.KALID CHANAPURA, AGED 48 YEARS, KAVARATTI ISLAND -
          682 555, LAKSHADWEEP.

    9     SADIKABI,
          D/O.KALID CHANAPURA, AGED 43 YEARS, KAVARATTI ISLAND -
          682 555, LAKSHADWEEP.

    10    MOHAMMED,
          S/O.KALID CHANAPURA, AGED 41 YEARS, KAVARATTI ISLAND -
          682 555, LAKSHADWEEP.

    11    VALIYABI,
          D/O.HAMZATH, KUNHIBIYODA, AGED 60 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    12    CHERIYABI,
          D/O.HAMZATH, KUNHIBIYODA, AGED 58 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    13    SAYIDABI,
          D/O.HAMZATH, KUNHIBIYODA, AGED 55 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    14    SAKARIYA,
          S/O.HAMZATH, KUNHIBIYODA, AGED 47 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.
                                                       2025:KER:80496

RFA NO. 723 OF 2015              -3-


    15    RASHEED,
          S/O.HAMZATH, KUNHIBIYODA, AGED 42 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    16    BEEBIHANA,
          D/O.HAMZATH, KUNHIBIYODA, AGED 52 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    17    JAMEELA,
          D/O.HAMZATH, KUNHIBIYODA, AGED 49 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    18    SHIHABUDEEN,
          S/O.HAMZATH, KUNHIBIYODA, AGED 52 YEARS, KAVARATTI
          ISLAND - 682 555, LAKSHADWEEP.

    19    KADEESHOMMA,
          D/O.AYSHOMMA, PALAMKAKKADA BEMAPURA, AGED 65 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    20    SAYED BUHARI,
          S/O.AYSHOMMA, PALAMKAKKADA BEMAPURA, AGED 54 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    21    CHERIYABI,
          D/O.AYSHOMMA, PALAMKAKKADA BEMAPURA, AGED 54 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    22    NAJEEMATH,
          D/O.AYSHOMMA, PALAMKAKKADA BEMAPURA, AGED 48 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    23    MOHAMMED KOYA, [DIED; LRs. RECORDED]*1
          S/O.AYSHOMMA, PALAMKAKKADA BEMAPURA, AGED 63 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    24    KADEESHABI,
          D/O.PATHUMMA, PALAMKAKKADA BEMAPURA, AGED 61 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    25    ABDUL LATHEEF,
          S/O.PATHUMMA, PALAMKAKKADA BEMAPURA, AGED 53 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.
                                                       2025:KER:80496

RFA NO. 723 OF 2015                  -4-


    26    VALIYABI,
          D/O.PATHUMMA, PALAMKAKKADA BEMAPURA, AGED 51 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    27    SUNDARIBI,
          D/O.PATHUMMA, PALAMKAKKADA BEMAPURA, AGED 48 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    28    AYSHA,
          KUNHIBIYODA, D/O.LATE MOHAMMED KOYA, AGED 27 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    29    RAHEEM,
          KUNHIBIYODA, S/O.LATE MOHAMMED KOYA, AGED 27 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    30    ANSAR,
          KUNHIBIYODA, S/O.LATE MOHAMMED KOYA, AGED 26 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    31    AMINA,
          KUNHIBIYODA, S/O.LATE MOHAMMED KOYA, AGED 25 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

    32    AMEEN,
          KUNHIBIYODA, S/O.LATE MOHAMMED KOYA, AGED 23 YEARS,
          KAVARATII ISLAND - 682 555, LAKSHADWEEP.

*1 [IT IS RECORDED THAT THE LEGAL HEIRS OF THE DECEASED 23RD
RESPONDENT ARE ALREADY IN THE PARTY ARRY AS RESPONDENTS 13 AND 28
TO 32 VIDE ORDER DATED 23/09/2025 IN MEMO DATED 26/06/2019]

*2 ADDITIONAL RESPONDENTS 33 TO 42

 ADDL.R33 SUBAIDA,
          D/O SAINABA AGED 59 YEARS, ASHIYAMMAKKADA KAVARATTI
          ISLAND-682555.LAKSHADWEEP.

 ADDL.R34 ABDUL RAZAK,
          S/O SIANABA,AGED 57 YEARS, ASHIYAMMAKKADA KAVARATTI
          ISLAND-682555.LAKSHADWEEP

 ADDL.R35 YAKOOB,
          S/O SAINABA,AGED 55 YEARS, ASHIYAMMAKKADA KAVARATTI
          ISLAND-682555.LAKSHADWEEP.
                                                                   2025:KER:80496



RFA NO. 723 OF 2015                    -5-


 ADDL.R36 AYSHABI, D/O SAINABA, AGED 53 YEARS, ASHIYAMMAKKADA
          KAVARATTI ISLAND-682555, LAKSHADWEEP.

 ADDL.R37 UMMER, S/O SAINABA, AGED 46 YEARS, ASHIYAMMAKKADA
          KAVARATTI ISLAND-682555, LAKSHADWEEP.

 ADDL.R38 NABEESA BEEGUM, D/O SAINABA, AGED 38 YEARS,
          ASHIYAMMAKKADA KAVARATTI ISLAND-682555, LAKSHADWEEP.

 ADDL.R39 JAFAR, S/O SAINABA, AGED 37 YEARS, ASHIYAMMAKKADA
          KAVARATTI ISLAND-682555, LAKSHADWEEP.

 ADDL.R40 ASHRAF, D/O SAINABA, AGED 35 YEARS, ASHIYAMMAKKADA
          KAVARATTI ISLAND-682555, LAKSHADWEEP.

 ADDL.R41 MARIYATH, D/O SAINABA, AGED 33 YEARS, ASHIYAMMAKKADA
          KAVARATTI ISLAND-682555, LAKSHADWEEP.

 ADDL.R42 PATHUMMABI, W/O ABDUL SALAM, AGED 54 YEARS,
          MANNATHANODE, KAVARATTI ISLAND-682555, LAKSHADWEEP.

*2 [LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
ADDITIONAL RESPONDENTS 33 & 42 VIDE ORDER DATED 20/06/2025 IN IA
2/2019]

            BY ADVS.
            SRI.A.T.ANILKUMAR
            SRI.B.DEEPAK
            SHRI.T.H.ABDUL AZEEZ
            SHRI.M.GOPIKRISHNAN NAMBIAR
            SRI.K.P.MAJEED
            SMT.V.SHYLAJA
            SRI.K.SHAMEER MOHAMMED
            SHRI.K.JOHN MATHAI
            SRI.JOSON MANAVALAN
            SRI.KURYAN THOMAS



     THIS   REGULAR   FIRST   APPEAL   HAVING   COME   UP   FOR    HEARING   ON
28.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                               2025:KER:80496



                          SATHISH NINAN &
                      P. KRISHNA KUMAR, JJ.
               = = = = = = = = = = = = = = = = = =
                      R.F.A. No.723 of 2015
               = = = = = = = = = = = = = = = = = =
             Dated this the 28th day of October, 2025

                             J U D G M E N T

Sathish Ninan, J.

The suit for prohibitory injunction against trespass was

dismissed by the trial court. The plaintiff is in appeal.

2. The plaintiff is a member of the Kadapurathaillam, an

ancient Tarwad of Kavaratti Island in Lakshadweep. The defendants

are the members of Palamkakkada Thavazhi which is a Thavazhi of

Kadapurathaillam Tarwad. The parties are followers of

Marumakkathayam system. As per the custom, when a 'thavazhi'

becomes extinct for absence of female members, the property of

the 'thavazhi' reverts to the Tarwad. Such reversionary right is

colloquially called as "Attalodukkam".

3. One Mohammed and his elder brother Ahammed were the last

surviving members of Palamkakkada Thavazhi. When Ahammed

attempted to alienate the property, the Karanavan of the

Kadapurathaillam thavazhi filed a suit as Civil No.50/1923 before

the Court of Amin, Kavaratti. The suit was decreed recognizing

2025:KER:80496

the rights of the brothers to be in possession of the property

but upholding the reversionary right of Kadapurathaillam Tarwad.

4. Alleging that Mohammed permitted residence of his wife

and children in the house situated in the property, the Tarwad

filed a suit as OS 117/1933. The suit was decreed as per Ext.A5,

recognizing the right of residence of Mohammed and his wife and

children and further accepting the decree passed in Civil No.

50/1923 (Ext.A1).

5. In the year 1946 Ahammed executed a gift deed in respect

of the six items of properties in favour of third party.

Challenging the alienation, a suit was instituted on behalf of

the Tarwad as OS 77/1948. The suit was decreed as per Ext.A9

holding the alienation to be bad and upholding the right of

reversion recognized in Civil No.50/1923 after the death of the

brothers Mohammed and Ahammed.

6. According to the plaintiff, on the death of the brothers

the plaint schedule properties reverted back to Kadapurathaillam

Tarwad. Alleging that the defendants are claiming right on the

strength of Ext.A12 adoption deed executed by Mohammed and

attempting to trespass into the properties, the suit is filed for

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prohibitory injunction against trespass.

7. The contesting defendants filed written statement

claiming that the reversionary right claimed by the plaintiff

Tarwad was negatived in the earlier round of litigations, in OS

47/1969 and OS 6/1975, both before the Subordinate Judges' Court,

Kavaratti and that the present suit is barred by res judicata.

8. The trial court tried res judicata as a preliminary

issue, upheld the plea of res judicata, and dismissed the suit.

9. We have heard the learned counsel on either side. The

points that arise for consideration are :-

(i) Is the suit barred by res judicata ?

(ii) Was the trial court right in having considered the plea of res judicata as a preliminary issue?

10. The learned counsel for the appellant vehemently

contended that the plea of res judicata is a mixed question of

law and fact, and it could not have been considered as a

preliminary issue. Order 14 of the Code of Civil Procedure

contemplates only the consideration of a question of law as a

preliminary issue, and not a mixed question of law and fact. The

learned counsel relied on decision of Sathyanath and Anr v. Sarojamani

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(2022 (7) SCC 644) and Thiruvambadi Rubber Co.Ltd v. Damodaran Nair (AIR 1984

Kerala 191) in support of the contention. It was also contended

that the suit being one for injunction simplicitor, only the

possession of the properties was the relevant issue. It was not

adjudicated in the earlier litigations. The court was bound to

consider the question of possession on the merits, it is argued.

11. The learned counsel for the respondents on the other

hand relied on the judgment of the Apex Court in The Jamia Masjid v.

K.V. Rudrappa (Since Dead) by L.Rs. And Ors (AIR 2021 SC 4523) and argued

that, when on the admitted facts the suit is barred by res

judicata, it could be considered as a preliminary issue. The

parties need not be relegated to the ordeal of a full fledged

trial, it was urged.

12. We find that, even on the undisputed facts, the present

suit is barred by res judicata. OS 6/1975 was a suit by the

plaintiff Tarwad claiming recovery of possession and injunction

against trespass. Admittedly, the present plaint schedule

properties were the properties involved therein. The suit was

dismissed by the trial court as per (Ext.B4) judgment.

Challenging the dismissal, the plaintiffs approached this Court

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in AS. No.267/1979. The appeal was considered by a Full Bench of

this Court. As per Ext.B6 judgment dated 05.09.1986, the appeal

was dismissed affirming the finding that the suit is barred by

res judicata. With regard to the reliefs claimed in the suit, the

court observed thus,

"The suit is by the Karanavan of Kadapurath Illom Tharwad (for short the tharwad) on his behalf and on behalf of tharwad for recovery of possession of plaint A schedule property with mesne profits past and future, and for a permanent injunction restraining defendants 1 to 10 from trespassing upon plaint-B schedule property and plucking the coconuts from the trees standing thereon or alternatively, if it is found that the B schedule property in its entirety or any portion thereof is in the possession of defendants 1 to 10, to have the same recovered with mesne profits." The suit was held to be barred consequent to the judgment in an

earlier suit (Ext.B1) in OS 47/1969 which stood affirmed in

Ext.B3.

13. It is contended by the learned counsel for the appellant

that the present suit being one for injunction simplicitor, what

is relevant is, the possession of the suit properties as on the

date of suit, which was not adjudicated upon in Ext.B6 judgment.

As we have already noticed, the suit in Ext.B6 judgment was one

for recovery of possession and for prohibitory injunction against

trespass. Both the reliefs relates to possession of the

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properties. Therein the Full Bench of this court held the suit to

be barred. No issue was left open. The said decision operates as