IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 RSA.No. 1040 of 2004() ----------------------------------- AS.248/2003 of SUB COURT,NEYYATTINKARA OS.674/1999 of PRINCIPAL MUNSIFF COURT,NEYYATTINKARA (OS. 523 /1998) .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------------------- 1. WILVET, S/O. MANUEL, RESIDING AT MANJU BHAVAN, POZHIYOOR P.O., NEYYATTINKARA. 2. AGNES, W/O. WILVET, RESIDING AT MANJU BHAVAN, POZHIYOOR P.O., NEYYATTINKARA. BY ADVS. SRI.P.K.BEHANAN SRI.M.P.SUMOD RESPONDENT(S): RESPONDENT/DEFENDANT: ------------------------------------------------------------------ PATRICIA KEVIN XAVIER, RSIDING AT MANJU BHAVAN, PALLAM PURAYIDAM, KULATHOOR VILLAGE, NEYYATTINKARA. ADV. SRI.G.SUDHEER THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, ALONG WITH RSA NO. 1041 OF 2004 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR, J ........................................... RSA .Nos.1040 & 1041 OF 2004 ............................................ DATED THIS THE 3rd DAY OF JUNE, 2011 JUDGMENT Plaintiff in O.S.523/1998, who is the first defendant in O.S.674/1999 on the file of Principal Munsiff Court, Neyyattinkara is the appellant in R.S.A.1041/2004. He is also first appellant in R.S.A.1040/2004 and second appellant therein is his wife and they are the defendants in O.S.674/1999. Respondent in R.S.A.1040/2004 is the plaintiff in O.S.674/1999 and respondents in R.S.A.1041/2004 are the defendants in O.S.523/1998. R.S.A.1041/2004 is filed challenging the concurrent judgment in O.S.523/1998 and R.S.A.1040/2004 challenging the concurrent judgment in O.S.674/1999. 2. Appellant instituted O.S.523/1998 seeking a decree for injunction from forcibly eviction from the plaint schedule building against the respondents in R.S.A.1041/2004, contending that plaint schedule building was constructed by him in the property belonging to first respondent with his consent and the respondents are not entitled to forcibly evict him and in any RSA NOS.1040 & 1041/2004 2 case, he is to be paid compensation. Subsequent to the institution of O.S.523/1998, respondent in R.S.A.1040/2004, the daughter of third respondent in R.S.A.1041/2004, filed O.S.674/1999 for eviction of the respondents in R.S.A.1040/2004 from the building contending that the building belongs to her relying on Ext.A6, the release deed executed by the first respondent in O.S.1041/2004 in her favour, in addition to Ext.A1 settlement deed executed by the third respondent in R.S.A.1041/2004. Appellants in R.S.A.1040 of 2004 filed a written statement in O.S.674/1999 admitting that the plaint schedule building in O.S.674/1999 is the same building involved in O.S.523/1998. It is contended that O.S.523/1998 was filed when there was an attempt to forcibly evict them and hence O.S.674/1999 is to be stayed under Section 10 of Code of Civil Procedure. It was also contended by the appellants that Ext.A6 obtained by respondent the plaintiff in O.S.674/1999 is hit by lis pendens. 3. Learned Munsiff on the evidence granted a decree in O.S.674/1999 and dismissed O.S.523/1998. Though A.S.248 of 2003 and A.S.249 of 2003 were filed by Sub Court Neyyattinkara, RSA NOS.1040 & 1041/2004 3 first appellate court confirmed the findings and dismissed the appeals. Second appeals were filed challenging the judgments. 4. The appeals were admitted formulating following substantial question of law. 1) Whether on the facts and in the circumstances of the case, the decree passed by the courts below is legal and proper in view of the fact that a mere reading of the description of the suit property in O.S.No.523 of 1998 shows that it is not the one and the same property described in O.S.No.674 of 1999 ? 2) Whether the courts below were right in treating the properties involved in the two suits as one and the same without comparing the description of the properties given in the suit and in the title deed ? 5. Learned counsel appearing for appellants and respondents were heard. The argument of learned counsel is that as seen from the description of the plaint schedule properties in both the suits, they are different and therefore the courts below were not justified in treating them as one and the same property and granting relief in favour of the respondent. Learned counsel pointed out that the building shown in O.S.674 of 1999 is in a RSA NOS.1040 & 1041/2004 4 different survey number than the property shown in A.S.523 of 1998 and in such circumstances the decree and judgment passed by the courts below is to be interfered. 6. Learned counsel appearing for respondent pointed out that the written statement filed by appellants in O.S.674 of 1999 makes it absolutely clear that both the buildings are one and the same. Learned counsel also pointed out that in the written statement appellants have contended that as O.S.674 of 1999 is a subsequent suit, which is stayed under Section 10 of Code of Civil Procedure and in addition, an application was also filed admitting that both the buildings are one and the same and in such circumstances, the plea that both are different raised in the appellate stage for the first time is not sustainable. 7. Appeal was admitted only with regard to the identity of the plaint schedule building. Therefore, the only question is whether plaint schedule building in O.S.523 of 1998 and plaint schedule building in O.S.674 of 1999 is one and the same. The plaint in both the suits would establish that the building sought to be evicted in O.S.674 of 1999 and sought to be restrained from forcible eviction in O.S.523 of 1998, is the same building bearing RSA NOS.1040 & 1041/2004 5 No.KP 11/282 of Kulathoor panchayat. Added to this, a reading of the written statement filed by the appellants, in O.S.674 of 1999 makes it clear that the building is one and the same. It was contended by them in paragraph 3 of the written statement that when there was an attempt to evict the appellants forcibly from the plaint schedule building in O.S.674 of 1999, first appellant was constrained to file O.S.523 of 1998 seeking a decree for permanent prohibitory injunction restraining the respondents from forcibly evicting him. It is also seen from paragraph 8 of the written statement that it is the case of appellants that during the pendency of O.S.523 of 1998, respondents in R.S.A.1040 of 2005 fraudulently obtained Ext.A6 release deed from first defendant in that suit in O.S.523 of 1998 in respect of the plaint schedule building and it is hit by lis pendence. In such circumstances, it cannot be disputed that the plaint schedule building in both the suits is one and the same. 8. Though learned counsel vehemently argued that the properties are different, plaint in O.S.523 of 1998 establish that the plaint schedule property therein is not the land but only the building and it is the case that the land belongs to the first RSA NOS.1040 & 1041/2004 6 defendant in O.S.523 of 1998, which was allegedly in the possession of plaintiff therein and it is alleged that the building was constructed with the consent of first defendant. Under Ext.A6, it is that property which was released to the plaintiff in O.S.674 of 1998, though appellant has a case that the property is different. Any way, as the suit is in respect of the building, which is the same building, the substantial question formulated is to be answered as the plaint schedule building in both the suits is one and the same. In such circumstances, the appeals are dismissed. M.SASIDHARAN NAMBIAR, JUDGE uj/lgk