IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 SA.No. 43 of 2001(E) ---------------------------- AS.138/1996 of SUB COURT, NEDUMANGAD OS.598/1993 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S): APPELLANT/PLAINTIFF --------------------------------------------------------- P.M.BASHEER, MEDAKADAYIL ALSO HAVING KADAYIL VILAKATHU VEEDU, MANIKKAL MURI, NELLANAD VILLAGE. BY ADVS. SRI.G.UNNIKRISHNAN SRI.P.V.RAMESH SHANKER SRI.G.P.SHINOD RESPONDENT(S): REPSONDENT/ DEFENDANT --------------------------------------------------------------------- PAREETHKUNJU IBRAHIM KUNJU, CHENTHAVILA VEEDU, MANICKAL MURI, NELLANAD VILLAGE. BY ADV. SRI.P.KESAVAN NAIR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss HARUN-UL-RASHID, J. ------------------------ S.A.No.43 Of 2001 ---------------------- Dated this the 7th day of February, 2011. J U D G M E N T The following substantial questions of law are formulated at the time of admission: i) Is not the finding of the court below, on the facts and circumstances of this case on the issue regarding res judicata contrary to law? ii) Is the finding that defendant has prescribed title to plaint C schedule property based on no material whatsoever and therefore vitiated in law? iii) Is the decree denying the relief claimed in the plaint sustainable in law in the light of the proved and admitted facts and other relevant circumstances brought out in evidence? 2. The plaintiff in O.S.No.598 of 1993 on the file of the Munsiff Court, Nedumangad is the appellant. The appeal is directed against the judgment and decree in A.S.No.138 of 1996 on the file of the Sub Court, Nedumangad. Suit was filed for declaration of title over plaint C schedule property and recovery of possession of the same. The trial court held that the present suit filed for recovery of possession is barred by res judicata. The ::2:: S.A.No.43 Of 2001 trial court also considered the question of title of the plaintiff. The trial court negatived the claim of title on merits as well. Suit was dismissed. Plaintiff preferred A.S.No.138 of 1996. The lower appellate court held that the suit is barred by res judicata. The lower appellate court further considered the question as to whether the plaintiff has got title to the property. The court after finding that the plaintiff is having title over plaint C schedule property, negatived recovery of possession on the basis of the finding that the suit is barred by adverse possession and limitation. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 3. Plaint A schedule property is described as three cents of land in R.S.No.1057/2 of Nallanad Village. Plaint B schedule property is described as 2.429 cents of the same survey number and plaint C schedule property is described as 1.304 cents. Plaint B & C schedule properties form part of plaint A schedule property and that plaint C schedule property is part of plaint B schedule. 4. The case of the plaintiff is that plaint A schedule ::3:: S.A.No.43 Of 2001 property originally belong to Peerumuhammed Pillai, father of the plaintiff. After his death there was partition in the family. Ext.A1 is the partition deed of the year 1971. As per Ext.A1 partition deed plaint A schedule property was allotted to the share of the plaintiff as item No.6. 5. Ext.A2 is the copy of the mortgage deed of the year 1954. According to the plaintiff pliant A schedule property was mortgaged in favour of the defendant by the predecessor of the plaintiff in the year 1954. In 1977 the plaintiff filed a suit for redemption of the mortgage. The extent of property shown in Ext.A2 mortgage deed is 1.25 cents. The extent of suit property in O.S.No.151 of 1977 as amended is 2.429 cents. The said 2.429 cents is the plaint B schedule property in the present suit. The previous suit was filed for redemption of 2.429 cents allegedly in the possession of the defendant. The trial court decreed O.S.No.151 of 197 allowing the plaintiff to redeem the plaint schedule property that was found in possession of the defendant (2.429 cents). Ext.A4 is the copy of the judgment in O.S.No.151 of 1977. The defendant in the suit filed A.S.No.123 ::4:: S.A.No.43 Of 2001 of 1981 challenging the decree and judgment passed by the trial court. The lower appellate court modified the decree and judgment. The appellate court is of the view that the plaintiff is entitled to get redemption only in respect of the extent mentioned in Ext.A2 mortgage deed. Ext.A6 is the copy of the judgment in A.S.No.123 of 1981. The relevant portion in paragraph 13 of Ext.A6 is extracted below: “The question as to how the defendant is in possession of the other excess land or as to how he came to be in possession of or under what right he is holding it are not matters which arise for consideration in this suit. Only because, the defendant could not satisfactorily show that he has purchased the other land that he has acquired any right as a holder of puramboke land, the plaintiff cannot got recovery of possession of that land in this suit since this is only a suit for redemption on the strength of the mortgage deed. Hence the finding of the lower court that the entire 2.429 cents if the mortgaged property cannot be upheld. It is held that only the yellow coloured plot measuring 1.125 cents as marked in Ext.C2(a) is the mortgaged property which is available for redemption”. ::5:: S.A.No.43 Of 2001 The lower appellate court in the said appeal held that the finding of the trial court that the entire 2.429 cents is the mortgage property cannot be upheld. The appellate court further held that only the yellow coloured portion measuring 1.125 cents marked in Ext.C2(a) plan is the mortgage property which is available for redemption. Regarding the balance property excluding the 1.125 cents the said court observed that the question as to how the defendant was in possession of the excess land or as to how the defendant came into possession or under what right he is holding the property are not matters which arise for consideration in this suit. In fact, the appellate court did not consider the right and title in respect of the balance extent. The said balance extent is the plaint C schedule property in the present suit. The judgment passed by the lower appellate court in A.S.No.123 of 1981 was confirmed by this Court in S.A.No.836 of 1987. Copy of the judgment is marked as Ext.A8. 6. The present suit was filed for declaration of title and recovery of possession of plaint C schedule property. According to the plaintiff, plaint C schedule property belongs to him and the ::6:: S.A.No.43 Of 2001 defendant is in possession of the property along with the extent mentioned in Ext.A2 mortgage deed. 7. The trial court as well as the lower appellate court accepted the contention of the defendant that the suit is barred by res judicata because of the decision in A.S.No.123 of 1981 filed against the judgment and decree in O.S.No.151 of 1977. 8. Ext.A4 judgment in O.S.No.151 of 1977 would go to show that the plaintiff sued for a decree for redemption of 2.429 cents of land. As I said earlier, plaint B schedule property in the present suit is the plaint schedule property in the previous suit. The Munsiff Court in O.S.No.151 of 1977 passed a decree for redemption of the plaint schedule property. The appellate court modified the decree and judgment and held that the present plaintiff is entitled to get a redemption only in respect of the extent mentioned in Ext.A2 mortgage deed. The lower appellate court modified the decree and confined redemption in respect of only 1.125 cents holding that the dispute as regards the balance extent is not a matter which arises for consideration in the suit. Therefore, the appellate court in A.S.No.123 of 1981 did not go ::7:: S.A.No.43 Of 2001 into the question relating to the title of the plaintiff. The present suit was filed in the above circumstances. The trial court as well as the appellate court entered the finding that the present suit is barred by the principles of res judicata is on the basis of the finding that the claim of the plaintiff for remaining extent of land was disallowed by the court in A.S.No.123 of 1981. I have extracted the conclusions of the lower appellate court. The lower appellate court in unambiguous terms held that since Ext.A2 mortgage deed relates to 1.125 cents alone, the plaintiff is entitled to redeem only the said extent. Regarding the remaining extent the court concludes that the matter does not arise for consideration. Therefore, it is very clear that the appellate court which modified the decree passed in O.S.No.151 of 1977 confines its decision only in respect of the extent covered by Ext.A2 mortgage deed. The court did not enter into any finding regarding the title of the balance extent of land. In fact, the balance extent of land which is plaint C schedule property in the present suit is excluded from adjudication in the previous suit. Therefore, the plaintiff is justified in filing a suit for declaration of ::8:: S.A.No.43 Of 2001 title and recovery of possession of plaint C schedule property. The lower appellate court confirmed the decree and judgment of the trial court mainly for the reason that the present suit is barred by the principles of res judicata. In the above said factual situation it is not correct to apply the principle of res judicata to the situation in hand. The trial court also independently considered the question of title of the plaintiff and held that the plaintiff has no title to the property. The lower appellate court also considered the question of title and entered the finding that the plaintiff has title to the property and further held that the plaintiff lost his title due to adverse possession and limitation. The lower appellate court mainly rests the decision on the question of res judicata. Since the finding on res judicata cannot be upheld, the case requires reconsideration by the courts below. The trial court shall consider the case afresh in the light of the observations made above and to enter a finding as to whether the plaintiff has got title to the property and, if found, whether it has been lost by adverse possession and limitation. Therefore the entire matter has to be re-considered by the trial court in the ::9:: S.A.No.43 Of 2001 light of available evidence and additional evidence if any to be adduced by the parties, if so advised. In the result, the judgment and decree passed by the courts below are set aside. The case is remanded for fresh consideration. Since it is an old case, the trial court shall dispose of the suit within a period of six months from the date of appearance of the parties. Parties shall appear before the court below on 3.3.2011. Transmit the records in O.S.No.598 of 1993 on the file of the Munsiff Court, Nedumangad immediately. HARUN-UL-RASHID, Judge. bkn/-