IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 OP(C).No. 2430 of 2011(O) ------------------------- OS.2227/2007 of III ADDL. MUNSIFF COURT,THRISSUR .................... PETITIONER/DEFENDANTS ----------------------------------------- 1. APPU, ALAKKAPPARAMBIL HOUSE, WARD NO.20, THRISSUR, MUNICIPALITY, POOTHOLE DESOM, THRISSUR VILLAGE AND TALUK. 2. SARASWATHY, W/O.ALAKKAPARAMBIL APPU, WARD NO.20, POOTHOLE DESOM, THRISSUR TALUK. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENTS/RESPONDENTS/PLAINTIFFS --------------------------------------------------------------- 1. SHEEBA, AGED 37 YEARS, GOVERNMENT JOB, W/O.BABURAJ, ALIN VEEDU, WARD NO.20 THRISSUR MUNICIPALITY, POOTHOLE DESOM, THRISSUR-680004. 2. RAMACHANDRA MENON, S/O.CHANGARTH SWARASWATHY AMMA, POOTHOLE, THRISSUR-680 004. 3. SUPRABHA, D/O.MANGALATH SUBHADRAMMA, W/O.CHANGARATH RAMACHANDRA MENON, POOTHOLE, THRISSUR-680 004. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2430 of 2011(O) ------------------------------------ APPENDIX --------------- PETITINER'S EXHIBITS ---------------------------------- EXT.P1. COPY OF THE PLAINT SUBMITTED BY THE RESPONDENTS AS OS NO.2227/2007 BEFORE THE MUNSIFF CURT, THRISSUR. EXT.P2. COPY of the JUDGMENT PASSED IN OS. NO.1285/2007 BY THE IIND ADDL. MUNSIFF COURT, THRISSUR. EXT.P3. COPY F THE ORDER PASSED IN S. NO2227/2007 PASSED BY THE IIIRD ADDL. MUSIFF COURT, THRISSUR. EXT.P4. COPY OF THE ORDER PASSED IN APPEAL CMA. NO.175/2009 PASSED BY THE 1 ADDL. DISTRICT COURT, THRISSUR EXT.P5. COPY OF THE AMENDMENT APPLICATION SUBMITTED BY THE RESPNDENTS/PLINTIFF INOS. NO.2227/2007 BEFORE THE MUNSIFF COURT, THRISSUR. EXT.P6. COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS AS IA NO.6003/2010 IN OS. NO.1285/2007 BEFRE THE MUNSIFF COURT, THRISSUR. EXT.P7. COPY OF THE ORDER PASSED IN IA. NO.6003/2010 IN OS. NO.2227/2007 PASSED BY THE IIIRD ADDL. MUNSIFF COURT, THRISSUR. RESPONDENT'S EXHIBITS : NIL ------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.2430 of 2011 -------------------------------------- Dated this the 28th day of July, 2011. JUDGMENT Petitioners are defendants in O.S.No.2227 of 2007 of the court of learned III Additional Munsiff, Thrissur. That is a suit for mandatory injunction for demolition of boundary wall and fixation of boundary. Petitioners resisted the suit on various grounds including that the suit is barred by res judicata in view of the decision in O.S.No.1285 of 1997 of the court of learned II Additional Munsiff, Thrissur between petitioners and predecessor-in-interest of the first respondent and respondents 2 and 3. Issue regarding res judicata was heard as a preliminary issue and by Ext.P3, order learned Munsiff found that the suit is not barred by res judicata. Thereafter the plaint was amended and that was followed by petitioners again requesting learned Munsiff to decide issue regarding res judicata as a preliminary issue. Learned Munsiff held that in view of Ext.P3, order a further contention that the suit is barred by res judicata cannot be decided as a preliminary issue and accordingly found against petitioners as per Ext.P7. The said orders (Exts.P3 and P7) are under challenge. 2. Learned counsel for petitioners contend that a reading of Ext.P2, judgment in O.S.No.1285 of 1997 would show that the present suit is in respect of the same subject matter between the same parties claiming under the OP(C) No.2430/2011 2 original owner and substantially the same relief is also prayed for in which case bar of res judicata is applied and petitioners may not be driven to a second suit and long drawn procedure of trial. 3. It is not disputed that in O.S.No.1285 of 1997 there was no prayer for fixation of boundary and instead it was merely a suit for injunction – prohibitory and mandatory – to restrain the defendants from reducing width of the pathway by putting up a compound wall, causing obstruction for passing vehicles through the said pathway and for a direction to the defendants to demolish the compound wall. By Ext.P2, judgment learned II Additional Munsiff observed that on going through the report and sketch prepared by the Advocate Commissioner, no compound wall is seen constructed in plaint C schedule pathway. Learned Munsiff found that there is no pleading in the plaint that the defendants in O.S.No.1285 of 1997 are in possession of any area less than 6.650 cents of land. It was found that there is no evidence to show that defendants in O.S.No.1285 of 1997 trespassed into plaint C schedule and constructed compound wall so as to reduce width of the pathway and obstructed vehicular traffic and accordingly that suit was dismissed. As against that, in the present suit apart from reliefs prayed for in O.S.No.1285 of 1997 there is a prayer for fixation of boundary between the properties. Assuming that the prayer for mandatory injunction is not allowable, still question arises whether OP(C) No.2430/2011 3 respondents are entitled to get the boundary between the properties fixed in the way the court ultimately finds even if it is assumed that the boundary as respondents say, may not be accepted by the learned Additional Munsiff. 4. In the above, no interference is required with the orders under challenge. Original Petition fails and is accordingly dismissed. THOMAS P.JOSEPH, Judge. cks