IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936 [CASE NUMBER] AGAINST THE JUDGMENT IN [SECTION] of ADDL.DISTRICT COURT, THRISSUR DATED 21-02-2003 AGAINST THE JUDGMENT IN [CASE NUMBER] of MUNSIFF COURT,CHAVAKKAD DATED 07-10-1998 APPELLANT(S) IN RSA-APPELLANTS 2 TO 11 IN AS/SOME LRS OF DEFENDANT IN OS. 1. [ENTITY], W/[ENTITY], NAMBIAR VALAPPIL, [ENTITY], PAZHANJI VILLAGE, TALAPPILLYU TALUK. 2. [ENTITY], D/[ENTITY] AND W/[ENTITY], [ENTITY], [ENTITY], [ENTITY]. 3. [ENTITY], W/O.SUJANA MANZIL ALI HAJI, NELLUVAI [ENTITY], ERUMAPETTY VILLAGE, TALAPPILLY TALUK. 4. [ENTITY], W/[ENTITY], VADAKKEKAD VILLAGE, [ENTITY], CHAVAKKAD TALUK. 5. [ENTITY], W/[ENTITY], CHIRAVALLUR [ENTITY], PERUMBADAPPU VILLAGE, [ENTITY]. 6. [ENTITY], W/[ENTITY], [ENTITY], KAPPURU VILLAGE, OTTAPPALAM TALUK. 7. [ENTITY], W/[ENTITY], [ENTITY], NANAMUKKU VILLAGE, [ENTITY]. 8. [ENTITY], S/O.NAMBIAR VALAPPIL LATE KUNJUMUHAMMED, [ENTITY], PAZHANJI VILLAGE, TALAPPILLYU TALUK. 9. [ENTITY], S/O.NAMBIAR VALAPPIL LATE KUNJUMUHAMMED, IN DO. DO. 10. [ENTITY], S/O.NAMBIAR VALAPPIL LATE KUNJUMUHAMMED, IN DO. DO. BY [ENTITY] (SR.) [ENTITY] [ENTITY] [ENTITY] PJ 2/- 2 [CASE NUMBER] RESPONDENT(S) 1 TO 3 IN RSA-RESPONDENT NO.1 & ADDL.RESPONDENTS 2 AND 3 IN AS/PLAINTIFF AND SOME LRS OF DEFENDANT IN OS.: 1. [ENTITY], S/[ENTITY], [ENTITY], PAZHANJI VILLAGE, THALAPPILLY TALUK. 2. [ENTITY], S/O.NAMBIAR VALAPPIL LATE KUNMJUMUHAMMED, [ENTITY], PAZHANJI VILLAGE, TALAPPILLYU TALUK. 3. [ENTITY],S/O.NAMBIAR VALAPPIL LATE KUNMJUMUHAMMED, [ENTITY], PAZHANJI VILLAGE, TALAPPILLYU TALUK. BY ADV. [ENTITY] THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PJ [ENTITY], J. - - - - - - - - - - - - - - - - - - - - - - [CASE NUMBER] - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August, 2014. JUDGMENT
The issue in this case actually revolves around ownership of a ridge which is admittedly the subject matter of an earlier litigation evidenced by Ext.B6 judgment in [CASE NUMBER].
2. The plaintiff in the present suit claimed right over the northern boundary including the ridge on that side of his property excluding the pathway which is situated further north. He sought for a declaration of title to the property and also in the alternative for laying northern boundary. It was alleged in the plaint that the title regarding ridge agitated in this suit was not an issue in the earlier suit and no decision had been rendered regarding the title. Pointing out that the defendant had no manner of right over the ridge on the northern side of the plaintiff's property, the suit was laid. [CASE NUMBER].
3. The defendant resisted the suit. His main plea was one of res judicata. According to him, the ridge which is the subject matter of the present suit was also the subject matter of the issue in the earlier suit which has been decided against the plaintiff herein and that is conclusive and binding on him. He cannot reagitate the issue. Even assuming that the issue of title as such was not decided in the earlier suit based on the pleadings in the earlier suit, it is contended that it has become necessary for the court in the earlier suit to decide whether the ridge forms part of the pathway or forms part of the property of the plaintiff who is the defendant in the earlier suit so as to exclude the right of the plaintiff in the earlier suit to use the ridge as a way. In support of his plea, he placed reliance on the pleadings and judgment and decree in the previous suit.
4. Based on these pleadings, issues were raised and the parties went to trial. The evidence consists of the [CASE NUMBER].
testimony of P.W.1 and document marked as Ext.A1 from the side of the plaintiff. The defendant had examined D.W.1 and produced Exts.B1 to B11. Exts.C1 to C8 are the Commission reports and plans. The trial court accepting the commissioner's report which showed that the ridge in question formed part of the plaint schedule property and holding that there was no decision on the title regarding the ridge in the earlier suit granted a decree as follows:
"In the result
a) The suit is decreed.
b) It is declared that the plaintiff has got title over the plaint A schedule property inclusive of the northern ridge which is the southern ridge of the disputed C schedule way in [CASE NUMBER]. Subject to the enjoyment of the ridge by the defendant as part of the way as decreed under Ext.B11.
c) The defendant is directed by a mandatory injunction to restore the demolished portions of the ridge and the granite wall of the plaintiff to its original position.
d) If the defendant defaults, the plaintiff is given liberty to do the work at the cost of the defendant.
[CASE NUMBER].
e) The defendant is directed to pay the proportionate cost of the plaintiff."
5. The aggrieved defendant carried the matter in appeal as [CASE NUMBER]. The appellate court confirmed the decree of the trial court. That brings the defendant before this Court. The following questions of law are seen raised in this appeal:
"i) Is not the plaint claim barred by res judicata?
ii) Is the finding of the lower appellate court that title to the ridge was not directly and substantially in issue in the earlier litigation, correct in law?
iii) Is not the plaintiff estopped from questioning the identification of the to be outside his property in the earlier suit in any subsequent litigation?
iv) Has not the plaintiff abandoned his claim of title to the ridge in appellate and second appellate stage of the earlier litigation?
v) Is the identification of the ridge as part of the property of the plaintiff sustainable in law?
vi) Whether the judgment and decree of the lower appellate court is sustainable in law?"
[CASE NUMBER].
It is pointed out that respondents 2 and 3 are sailing with the plaintiff and notice to those respondents is dispensed and the service is declared complete.
6. Shri.[ENTITY], learned counsel appearing for the appellant pointed out that there is nothing magical about the term issue and the attempt should be to ascertain what was the matter that arose for consideration in the earlier suit and if it is the same that is being agitated in the present suit. Referring to the plea in the earlier case, learned counsel contended that the earlier suit in which the appellant was the plaintiff, namely [CASE NUMBER], the dispute was regarding the use of a way which was admittedly situated on the northern side of the plaintiff's property. The specific contention in the earlier suit, according to the learned counsel, was that the ridge on both sides of the pathway was claimed to be part of the pathway and it was also alleged that the defendant in the earlier suit who is the plaintiff in the present [CASE NUMBER].
suit was trying to annex a portion of the northern ridge to his property.
7. Referring to the averments in the written statement in the earlier suit, it was pointed out that the definite contention taken by the defendant in the earlier suit was that the ridge on the northern side did not form part of the pathway and it forms part of the property of the plaintiff in the present suit. True, according to the learned counsel, no issue regarding the title as regards the ridge was raised as such in the earlier suit. Necessarily the questions as to whether the ridge in question formed part of the pathway and if the defendant in the earlier suit had exclusive right over the ridge to the exclusion of the right of use of the plaintiff in the earlier suit were matters directly and substantially in issue in the earlier suit. That issue, according to the learned counsel, went in favour of the plaintiff in the earlier suit who is the defendant in the present suit. According to the learned [CASE NUMBER].
counsel, having suffered a decree in the earlier suit, the second suit on the basis of the contention that the same ridge forms part of the property of the plaintiff herein could not have been entertained by the courts below.
8. Learned counsel went on to point out that the decree granted by the trial court in the earlier suit which was confirmed in appeal by the first appellate court and in second appeal prohibits the defendant in the earlier suit from annexing any portion of the ridge on the northern side of his property. The declaration sought for, which was declined by the trial court in the earlier suit was granted by the appellate court in appeal.
9. In support of his contention, learned counsel relied on the decisions reported in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas 2008) 11 SCC 753), Sulochana Amma v. [ENTITY] (AIR 1994 SC 152), S. Venkatesha Bhatta v. S. Subrammanya Bhatta (1972 K.L.T. [CASE NUMBER].
215), Govindan Nair v. [ENTITY] (1956 Tra Co 266), State of Karnataka v. All India Manufacturers Organization 2006) 4 SCC 683) and Ishwar Dutt v. Land Acquisition Collector 2005) 7 SCC 190). At any rate, according to the learned counsel, even if strict rule of res judicata may not apply, the principle of estoppel applies to the facts of the case and the courts below have lost sight of that doctrine also. Accordingly, it is contended that the judgments and decrees of the trial court and appellate court cannot be supported both on facts and in law.
10. Shri. [ENTITY], learned counsel appearing on behalf of the respondents contended that the courts below were justified in their conclusion that there was no issue regarding the title to the ridge in question in the earlier suit nor was there a conclusive finding in that regard in the earlier suit. After the filing of the suit, learned counsel pointed out that the ridge was destroyed and he had to move the court for [CASE NUMBER].
mandatory injunction in that regard also. The mere fact that the ridge in question was involved in the earlier suit does not lead to the conclusion that there was determination of the right regarding the ridge and the decisions relied on by the learned counsel for the appellant in the previous litigation could at best be treated as conferring a right on the appellant to use the ridge as a pathway. The decisions of the various forums relied on by the learned counsel for the appellant did not determine the title to the ridge in question. Accordingly, it is contended that no grounds are made out to interfere with the judgments and decrees of the courts below.
11. Viewed in a hyper technical manner, counsel for the respondent may be justified. But the plea of res judicata has to be closely examined. It revolves around consideration of the real issue involved in the earlier suit. If the issue regarding the ridge in question was agitated and there is a conclusive determination of the issue, then that issue cannot [CASE NUMBER].
be reagitated in a subsequent suit. Of course, the plea of res judicata is a rule of evidence and the person who sets up the said plea has to adduce evidence in that regard.
12. It is not in dispute that the ridge involved in this suit and in [CASE NUMBER] are the same and the suits were between the same parties. Ext. B1 is the plaint in [CASE NUMBER]. In the plaint, it was specifically averred that the pathway in question was bounded on either sides by ridges and the northern ridge was attempted to be tampered by the defendant in the earlier suit who is the plaintiff in the present suit and also that the defendant in the earlier suit was trying to annex it to his property. It was on the basis of that allegation that the declaration was sought for and consequential reliefs like prohibitory injunction etc were sought for. It will be only appropriate to note the defence taken in the earlier suit as could be seen from Ext.B2 written statement dated 16.8.1979. The definite plea taken [CASE NUMBER].
controverting the allegations in the plaint was that the ridge on the northern side did not form part of the pathway and it formed part of the property of the defendant in the said suit.
13. True, no issue as such regarding the title of the ridge was raised in the earlier suit. But the Commission report and plan in the earlier suit which are Exts.B3 and B4 in the present suit clearly show that the ridge on the northern side did not form part of the property of the defendant and the ridge was lying outside his property. It is significant to notice that no objection was filed to the commission report in the said suit. Even after the commission report disclosed that the ridge on the northern side of the pathway which is the northern boundary of the plaintiff in the present suit did not form part of the property of the defendant in the earlier suit, he did not feel it necessary to adduce evidence in support of his case. The result was that the trial court accepting the observation of the Commissioner held that the ridges on [CASE NUMBER].
either side form part of the pathway and decreed the suit in the following terms:
"In the result the defendant is restrained by a decree of permanent injunction from destroying the ridges or annexing the same or any part of 'C' schedule and also from obstructing the plaintiff from using the 'C' schedule pathway."
However, the trial court was of the view that since the servient owner has not been impleaded in the suit, declaratory reliefs could not have been granted.
14. The defendant went up in appeal and the plaintiff in the said suit filed a cross appeal. The cross appeal was allowed granting declaratory prayer and the appeal filed by the defendant was dismissed confirming the injunction portion of the decree. The defendant in the earlier suit did not leave the matter there. He took up the matter before this Court as [CASE NUMBER]. This Court after observing the necessity to have the ridges on either sides of the pathway for [CASE NUMBER].
the safety of the people walking through the pathway concluded the judgment as follows:
"The ridges also form part of the pathway and the defendant has no manner of right to destroy the same."
15. One may now have a look at the decisions relied on by the learned counsel for the appellant. In the decision reported in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas 2008) 11 SCC 753) construing [SECTION] and [SECTION] of the [ACT], the court observed as follows:
"35. The issue indisputably was the claim of entitlement to [ENTITY] by the first respondent and a plea contra thereto raised by the appellants. Once the issue of entitlement stood determined, the same would operate as res judicata. We may notice some precedents for appreciating the underlying principles thereof. [SECTION] of the Code, thus, in view of the issues involved in the earlier suit, the provisions thereof shall apply.
[CASE NUMBER].
36. In [PRECEDENT] this Court held :-
"3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated [PRECEDENT], it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories : (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of Justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment [CASE NUMBER].
when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.
16. In the decision reported in Sulochana Amma v. [ENTITY] (AIR 1994 SC 152), the court had observed as follows:
"8. Sri. [ENTITY] further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. In this case, when the right and interest of the respondent were questioned in his suit against 'K', the validity of the settlement deed and the terms thereof were gone into. The civil Court found that 'K' acquired life-estate under the settlement deed [CASE NUMBER].
executed by his wife conferring vested remainder in the respondent and on its basis the respondent was declared entitled to an injunction against 'K'who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant. Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality would operate as res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. The appellant is a person deriving title from 'K' who was a party in the former suit is also hit by the doctrine of lis pendens under [SECTION] of the [ACT]."
17. In the decision reported in [PRECEDENT] the court had observed as follows:
"In a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based [CASE NUMBER].
on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. On the examination of case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief or permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. Therefore, this subsequent suit filed by the present appellant as purchaser from [ENTITY] is barred by constructive res judicata."
18. In the decision reported in [PRECEDENT] the question as to whether the decision on each of the points operates as res judicata was considered and it was held as follows:
"If the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of the points operates as res judicata between the parties. What was done in the earlier suit was that the [CASE NUMBER].
plea of the defendants that the passage available to the plaintiff was along 'F2' was accepted and a finding to that effect was recorded on the relevant issue: and that finding was also material for deciding the controversy between the parties, viz. Whether the plaintiff was entitled to a right of way along 'S'. The existence or otherwise of a passage along 'F2' was 'not an irrelevant matter which accidentally got into the suit but did possess some significance in relation to the relief to be granted'. The defendants raised that plea and invited a decision on that question expecting that, if the decision was in their favour, the plaintiff's suit would be dismissed. And that was exactly what happened too. The said decision in the earlier suit is, therefore, res judicata in the present suit."
19. In the decision reported in Govindan Nair v. [ENTITY] (1956 Tra.Co 266), this Court had occasion to observe the circumstance when the plea of constructive res judicata can be got over.
20. In the decision reported in State of Karnataka v. All India Manufacturers Organisation 2006) 4 SCC 683), it [CASE NUMBER].
was held as follows:
"36. The spirit behind [SECTION] is brought out in the pithy words of [ENTITY], V.C. in Henderson v. Henderson11as follows:
"The plea of res judicata applies, except in special case (sic), not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time."
38. The judgment in [PRECEDENT] (supra) was approvingly referred to by this Court in [PRECEDENT]. Combining all these principles, a Constitution Bench of this Court in [PRECEDENT] on the principle laid down in [PRECEDENT] (supra) by holding that : " an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had (sic) decided as incidental to or essentially connected with (sic) subject matter of the [CASE NUMBER].
litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying [SECTION] of the [ACT] was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."
21. As regards the issue of estoppel, in the decision reported in Ishwar Dutt v. Land Acquisition Collector 2005) 7 SCC 190), it was held as follows:
"21. In "The Doctrine of Res Judicata' 2nd Edition by [ENTITY] and [ENTITY], it is stated :
"A judicial decision is deemed final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent rescission, review, or modification by the tribunal which pronounced it "
22. True, as rightly pointed out by the learned counsel for the respondent before this Court, there was no [CASE NUMBER].
specific issue regarding the title of the defendant in the earlier suit to the ridge situated on the northern side of the plaintiff's property. But one cannot omit to note that the specific plea in the earlier suit was that the way over which the right was claimed includes the ridges on both sides and the further allegation was that the defendant in the said suit was trying to tamper with the ridge on the northern side and trying to annex it to his property. The Commissioner in the said suit filed a report pointing out that the disputed ridge did not form part of the defendant's property and it formed part of the pathway. Accepting the commission report and other items of evidence in the earlier suit, the decree as already mentioned has been passed. No objection was taken to the commission report Ext.B3.
23. To determine the issue as to whether the plaintiff in the earlier suit had a right of way and also make use of the ridge as a way, necessarily the question as to the [CASE NUMBER].
rights of the parties over the ridge has to be gone into. In the light of the specific contention raised by the defendant in the earlier suit, it was necessary to determine whether the ridge in question formed part of the pathway or it was the exclusive property of the defendant. That issue was found in favour of the plaintiff in the earlier suit and that the ridge was found to be a part of the pathway and consequential injunction restraining the defendant from annexing any portion of that ridge to his property was granted. If as a matter of fact the ridge formed part of defendant's property, then there was no question of granting injunction as against the defendant in the said suit. For reasons best known to the defendant in the earlier suit, he did not agitate his rights in the earlier suit and he suffered a decree which was confirmed in appeal by this Court. All throughout, it was found that the ridge in question forms part of the pathway and that the defendant in the earlier suit had no manner of right to interfere with the right [CASE NUMBER].
of the plaintiff in the earlier suit to use the ridge as a pathway and also that the defendant in the earlier suit was slapped with a decree for prohibitory injunction from annexing any portion of the ridge into his property.
24. Even assuming that there is no specific issue regarding title, the question as to whether the ridge involved in [CASE NUMBER] question formed part of the pathway was directly and substantially in issue in the earlier suit. In this context, the rival claims will have to be considered, which had already been referred to. Therefore, the contention by the defendant is that it was in derogation or in contravention of the right claimed by the defendant in the earlier suit with regard to the ridge a decree was granted in favour of the plaintiff in the earlier suit. That finding on the issue regarding northern ridge forming part of the pathway has become final and it is the same issue which is directly and substantially in the present suits.
[CASE NUMBER].
25. The courts below have omitted to note the above significant aspect and had gone on the premise that since the issue regarding title had not been raised in the earlier suit, the plaintiff in the present suit is free to agitate all his claims over the ridge on the northern side of his property.
26. Merely because no issue regarding the title has been raised in the previous suit, may not be a determinative factor. When one goes through the pleadings and the issue that was raised in the earlier suit, it is clear that the real issue was whether the ridge in question formed a part of the pathway. Further, the finding was to the effect that the ridge is a portion of the pathway and the defendant in the earlier suit who is the plaintiff in the present suit has no manner of right to claim any portion of the ridge on the northern side and injunction was issued against him. Obviously, the issue as to the right over the ridge is covered by the earlier suit and since the issue has finally decided, the [CASE NUMBER].
present suit is barred by res judicata. It cannot be said that title to ridge was an issue in the earlier suit. The earlier suit was not based on possession alone, but also right of the defendant in that suit over the northern ridge. Right to own and possess the ridge was directly and substantially in issue in the earlier suit.
27. Faced with the above situation, learned counsel for the respondent pointed out that his alternative prayer for fixation of the northern boundary may be considered.
28. Here, one has to notice that Exts.B3 and B4 are the commission report and plan in the earlier suit. In the earlier suit, it was found that the northern ridge did not form part of the plaintiff's property and it was a portion of the pathway over which the plaintiff in the earlier suit claimed right of use. Of course, the plaintiff in the present suit may be justified in his submission that he is entitled to have his northern boundary determined and laid. But that can be only [CASE NUMBER].
on the basis of Exts.B3 and B4 which are produced in the present suit.
In the result, while setting aside the judgments and decrees of the courts below and holding that the plea of title regarding the ridge in question is barred by the principle of res judicata, the matter is remanded to the trial court for fixation of the northern boundary of the plaintiff's property in the light of Exts. B3 and B4 produced in the present suit. The parties shall appear before the trial court on 30.9.2014. The trial court may make every endeavour to dispose of the matter as expeditiously as possible, at any rate within a period of six months from the date of appearance of the parties. It is made clear that the fixation and laying of northern boundary to plaintiff's property alone need be gone into by the trial court.
[ENTITY], sb. JUDGE