IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 RSA.No. 332 of 2011(F) ---------------------- AS.24/2005 of II ADDL. DISTRICT COURT, PALAKKAD OS.696/1998 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS/ APPELLANTS/PLAINTIFFS ----------------------------------------- 1. ISMAIL KHAN, SON OF HUSSAIN KHAN, D.NO.47, VIVEKANDNDHA SQUARE, ARIVOLI NAGAR, KOVAI PUDUR, COIMBATORE. 2. CHANUMMA BEEVI, D/O.HUSSAIN KHAN, D.NO.47, VIVEKANDNDHA SQUARE, ARIVOLI NAGAR, KOVAI PUDUR, COIMBATORE. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENT/RESPONDENT/ DEFENDANT ------------------------ HAKKIM, S/O.KUDHUS RAWTHER, CHERAMBARA @ PUNNAPPARA, MALAMPUZHA, KADUKKAMKUNNAM AMSOM, MALAMPUZHA.P.O. PALAKKAD TALUK. ADV. SRI.A.R.GANGADAS FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.332 OF 2011 --------------------------------------------- Dated 29th March, 2011 JUDGMENT Plaintiffs in O.S.696/1998 on the file of Munsiff court, Palakkad are the appellants. Defendant is the respondent. Appellants instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint schedule property along with other properties were set apart to the share of their father and mother , Hussain Khan and Theressa Beevi, under Ext.A1 decree in O.S.141/1947 and on their death it devolved upon appellants and other children and they have been in possession of the plaint schedule property since then. The suit was instituted on behalf of other co-owners also. It is contended that RSA 332/11 2 respondent is residing in a hut situated on the northern side of the plaint schedule property and it was constructed by trespassing into the property of PWD and respondent attempted to trespass into the plaint schedule property and he has no right to do so and hence he is to be restrained by a permanent prohibitory injunction. 2. Respondent filed a written statement contending that plaint schedule property was not set apart to the share of the parents of the appellants and plaint schedule property is to be properly identified and the property is actually in the possession of respondent and appellants are not entitled to the decree sought for. It was contended that when the mother of the appellants tried to grab the plaint schedule property, mother of the respondent instituted O.S.360/1982 seeking a RSA 332/11 3 decree for permanent prohibitory injunction restraining the mother of the appellants from trespassing into the plaint schedule property and the said suit was decreed and it was challenged before District Court, Palakkad in A.S.113/1987 and during the pendency of the appeal, mother of the appellants died and appellants were impleaded as legal heirs and by Ext.B2 judgment appeal was dismissed and appellants challenged the judgment before this court in S.A.389/1989 and by Ext.B3 judgment second appeal was also dismissed and therefore, claim of the appellants is barred by principles of res judicata. 3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A3, B1 to B5 and C1 to C2 found that plaint schedule property in O.S.360/1982 and the plaint schedule property herein is one and the same. Learned Munsiff RSA 332/11 4 also found that under Ext.B1 decree, confirmed by Exts.B2 and B3 judgments, mother of the respondent under whom the appellants claimed right, title and possession were restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property and appellants did not establish their possession and therefore, they are not entitled to the decree sought for. Appellants challenged the judgment before District Court, Palakkad in A.S.24/2005. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants and respondent, who appeared on lodging a caveat were heard. Learned counsel appearing for the respondent made available RSA 332/11 5 copies of Exts.B1 to B3. 5. Argument of the learned counsel is that courts below erred in finding that plaint schedule property in O.S.360/1982 and the present plaint schedule property is one and the same. It was contended that northern boundary of the plaint schedule property in O.S.360/1982 is thodu and Ext.C2(a) plan with Ext.C1 report show that thodu lies further to the north of the property in the possession of the appellants and therefore, plaint schedule property in O.S.360/1982 is not the plaint schedule property herein. Learned counsel also argued that in such circumstances, finding of the courts below that suit is barred by principles of res judicata is not sustainable. It is also argued that when the plaint schedule property was allotted to the share of the parents of the appellants and on their death RSA 332/11 6 it devolved upon the appellants and the other children, and evidence establishes that they are in possession of the property, the decree for injunction should have been granted. 6. Appellants sought the decree for injunction contending that they are in possession of the plaint schedule property as legal heirs of deceased parents to whom plaint schedule property was allegedly allotted under Ext.A1. Though Commission was appointed and the commissioner submitted Exts.C1 and C2 reports and C2(a) plan, Commissioner has identified the plaint schedule property not with reference to Ext.A1 decree, but only on the basis of description shown in the plaint. Unless appellants identified the plaint schedule property with reference to Ext.A1 decree, appellants cannot claim that they obtained right over plaint schedule property RSA 332/11 7 based on Ext.A1. Courts below on a detailed examination of the plaint schedule property in O.S.360/1982 and plaint schedule property herein, based on the evidence, found that plaint schedule property in O.S.360/1982 was abutting the property sold by the mother of the appellants to one Scaria and the plaint schedule property is exactly the very same property, as seen from the description. Though appellants contended that property covered under Ext.B1 is different, Commissioner was not directed to identify the property covered under Ext.B1 decree to show that the property is different. Based on the evidence courts below entered a factual finding that property is the same. That factual finding cannot be interfered in the second appeal. If the properties are same, appellants cannot be heard to contend that their claim which is based on the same RSA 332/11 8 title raised in O.S. 360/1982, is not barred by res judicata. Though appellants are not parties to O.S.360/1982, appellants are claiming right under their mother who was the defendant in O.S.360/1982. In fact appellants were impleaded as additional appellants in A.S.113/1987 when the mother of the appellants who filed the first appeal died during the pendency of the appeal. The second appeal was preferred by the appellants. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.