IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 8TH DECEMBER 2010 / 17TH AGRAHAYANA 1932 AS.No. 854 of 1996(A) -------------------------------- OS.116/1995 of ADDL.SUB COURT, KOCHI .................... APPELLANTS/PLAINTIFFS: ---------------------------------------- 1. SADANANDA NAIK, S/O.NARASIMHA NAIK, C.C.8/64, SOUTH CHERLAI, COCHI-682 002, MATTANCHERY VILLAGE, COCHIN TALUK. 2. THARA BAI, W/O.SADANANDA NAIK, -DO- -DO-. BY ADV. SRI.ELDHO PAUL, SRI.M.P.RAMNATH. RESPONDENTS/DEFENDANTS: ---------------------------------------------- *1. RATNA BAI, W/O.RANGANATHA MALLAYA, C.C.8/62, SOUTH CHERLAI, COCHIN-682 002, MATTANCHERRY VILLAGE, COCHIN TALUK. *(DIED) 2. KANAKA BAI, W/O.KRISHNA MALLAYA, -DO- -DO- . **3. SUBHA VADYAR, S/O.LATE KRISHNA VADYAR, REISIDING AT C.C.8/65, SOUTH CHERLAI, -DO- -DO-. **(DIED) 4. SREENIVASA BHAT, S/O.LATE KRISHNA VADYAR, RESIDING AT -DO- -DO-. ***5. JAYANTHI BAI, W/O.MURALIDHARA MALLAYA, RESIDING AT C.C.8/65, -DO- -DO-. ***(DIED) **ADDL. RESPONDENTS 6 TO 10 IMPLEADED ADDL. R6: KANAKA BAI, W/O.LATE SUBHA VADYAR, ` HOUSE NO.8/430 (OLD CC 8/65), SOUTH CHERLAI, COCHIN-682 002, MATTANCHERRY VILLAGE, COCHIN TALUK. ADDL. R7: VASUDEVA BHAT, S/O.LATE SUBHA VADYAR, -DO- -DO-. ADDL. R8: NARAYANA BHAT, S/O.LATE SUBHA VADYAR, -DO- -DO-. ADDL. R9: USHA KUMARI, D/O.LATE SUBHA VADYAR, W/O.JAYAKUMAR KAMATH, EMPLOYEE TIRUMALA DEVASWOM, THAZHATHANGADI P.O., KOTTAYAM. AS.No. 854 of 1996(A) ADDL. R10: VIJAYAKUMARI, D/O. LATE SUBHA VADYAR, W/O.BALAKRISHNAN, MAKKANAYI MADOM, OPPOSITE TO GAURI SHANKER HOSPITAL, KODUNGALLUR. **LEGAL HEIRS OF DECEASED 3RD RESPONDENT IMPLEADED AS ADDITIONAL RESPONDENTS 6 TO 10, VIDE ORDER DATED 17/06/2010 IN I.A.433/2008 AND ORDER DATED 14/10/2009 IN I.A.3484/2009. *ADDL. R11 IMPLEADED ADDL. R11: GOVINDA PAI, S/O.RATNA BAI & RANGANATHA MALLAYA, AGE ABOUT 50 YEARS, 8/1387 T.D. EAST SANNIDHI ROAD, KOCHI-682 002. *LEGAL HEIRS OF DECEASED 1ST RESPONDENT IS IMPLEADED AS ADDITIONAL RESPONDENT 11, VIDE ORDER DATED 02/12/2010 IN I.A.2333/2010. ***ADDL. R12 TO R15 IMPLEADED ADDL. R12: GEETHA, D/O.JAYANTHI BAI AND MURALIDHARA MALLAYA, OLD NO.CC.8/65 SOUTH CHERLAI, COCHIN-682 002, MATTANCHERRY VILLAGE, COCHIN TALUK ADDL. R13: RAJESH, 4/1248 THUNDIPARAMBIL, KOCHI-682 002. ADDL. R14: DINESH, S/O.JAYANTHI BAI AND MURALIDHARA MALLAYA, OLD NO.CC.8/65 SOUTH CHERLAI, COCHIN-682 002, MATTANCHERRY VILLAGE, COCHIN TALUK. ADDL. R15: MURALIDHARA MALLAYA, FATHER'S NAME NOT KNOWN, H/O.LATE JAYANTHI BAI, OLD NO.CC.8/65 SOUTH CHERLAI, COCHIN-682 002, MATTANCHERRY VILLAGE, COCHIN TALUK. ***LEGAL HEIRS OF DECEASED 5TH RESPONDENT IS IMPLEADED AS ADDITIONAL RESPONDENTS 12 TO 15, VIDE ORDER DATED 02/12/2010 ON I.A.2240/2010. BY ADV. SRI.S.K.BRAHMANANDAN, SRI.S.B.PREMACHANDRA PRABHU, SRI.G.S.PRABHU. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs AS.No. 854 of 1996(A) ORDER ON C.M.P.NO.5107/1996 IN A.S. NO.854/1996 DISMISSED 08/12/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 854 OF 1996 = = = = = = = = = = = = = = = Dated this the 8th day of December , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kochi in O.S.116/95. The suit is one for fixation of boundaries and for injunction. The trial court dismissed the same and it is against that decision the plaintiff has come up in appeal. 2. Heard the learned counsel for the appellant as well as the contesting respondents. The brief facts necessary for the disposal of the appeal are stated as follows. The plaint schedule property is shown as 25 & 3/8 cents of land lying as a single compact place. Three items of property are involved of which 17 cents of land and another 4 cents of land were acquired by the first plaintiff as per sale deed A.S. 854 OF 1996 -2- No.891/1955 and settlement deed of 1939/63. The 2nd plaintiff also had acquired property of 4 cents and she had obtained the same under document No.548/62. It is the definite case of the plaintiff that all these properties are lying contiguously as a simple compact land and therefore fixation of boundaries is absolutely necessary. It is also stated that the injunction suit filed was dismissed for lack of prayer for fixation of boundary. Defendants on the other hand would contend that the properties are not lying contiguously. There had been earlier round of litigation and it had attained finality and therefore the suit is barred by the principles of resjudicata and therefore they pray for dismissal of the suit. A.S. 854 OF 1996 -3- 3. The trial court on appreciation of the materials found that the plaintiff has not succeeded in proving that the three items of properties covered by the document are lying contiguously and further held that the plaintiff has not taken out a Commission which is absolutely necessary for fixation of boundary. Therefore dismissed the suit. The Court also found that Exts.B1 and B2 will not operate as resjudicata for the reason that it was a suit for injunction. Now the crux of the matter depends upon two main points namely (1) whether the properties are lying contiguously and (2) whether an issuance of Commissioner is necessary for the purpose of fixation of boundaries. The respondents' counsel also would contend that there was a compromise between the parties in O.S.327/84 and that compromise will A.S. 854 OF 1996 -4- operate as resjudicata in the case. 4. Let me first consider about the question of resjudicata. As held by the trial court in Exts.B1 and B2 the suit is one for injunction. Injunction suit is only concerned with the form of possession and fixation of boundary is not relevant in such cases. Therefore a decree of injunction cannot operate as a bar to file a suit for fixation of boundaries. 5. Learned counsel for the contesting respondents would contend that the compromise decree in O.S.327/84 may operate as a bar. But unfortunately only a photocopy of the decree and compromise were produced which the trial court did not advert, correctly for the reason it is not admissible in law. Therefore I feel that question can be considered if the defendants insist on the plea of resjudicata A.S. 854 OF 1996 -5- that an authenticated copy is produced with the relevant pleadings available in the suit. So consideration of Ext.B3 is left open. 6. Now the next question is regarding the fixation of boundaries. If the answer to Ext.B3 is in favour of the defendant the plaintiff may not be entitled to any relief at all but otherwise the lie of the land, identification of the property with respect to the title deeds with a measurement will become absolutely necessary for the disposal of the case. When the properties are attempted to be demarcated with reference to the boundaries, it can be easily found out whether they are lying contiguously or not. Thereafter the Commissioner can also proceed to locate the property as covered by the documents and when it is done the fixation of boundaries also become an easy A.S. 854 OF 1996 -6- method. Therefore to answer these two issues it is absolutely relevant to have a Commissioner's plan and report. It is true that the parties are litigating and the plaintiff is litigating one after another litigation but in a suit for fixation of boundary unless it is settled amicably or by any method of law it will be a never ending process and so it is desirable an opportunity is given. Therefore the judgment and decree passed by the trial court are set aside and the matter is remitted back for the following purposes. (1) The defendant, if advised, can produce the certified copy of Ext.B3 and the Court can consider the question of resjudicata, if raised. (2) The trial court shall issue a Commission to demarcate the property with respect to the title deed of the plaintiff and the defendants, A.S. 854 OF 1996 -7- the Commissioner should also find out whether the property described in the plaint are lying contiguously as contended by the plaintiff and thereafter on proper demarcation with reference to the documents and after hearing all concerned the boundaries can be fixed in accordance with law. (3) The plaintiff has to bear the expenses of the Commissioner and ultimately it will depend upon the result of the case. (4) Parties are directed to appear before the Court below on 17.1.2011. (5) It is made clear that both parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions to arrive at a proper finding. M.N. KRISHNAN, JUDGE. ul/- A.S. 854 OF 1996 -8- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 854 OF 1996 = = = = = = = = = = = J U D G M E N T 8th December, 2010.