IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 SA.No. 343 of 1997(G) -------------------------------- AS.190/1994 of PRINCIPAL SUB COURT, THALASSERY OS.608/1992 of MUNSIFF COURT, KUTHUPARAMBA .................... APPELLANT(S)/ PLAINTIFF ---------------------------------------- KURUMANHI NANU, NELLIYULLATHIL, TRIPANGOTHUR AMSOM, POYILOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R. PARTHASARATHY. RESPONDENT(S)/ DEFENDANT --------------------------------------------- * 1. NELLIYULLATHIL KOKKANHI KUNHIKANNAN, TRIPPANGOTTUR AMSOM, POYILOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT.( DIED) LRS OF DECEASED SOLE RESPONDENT ----------------------------------------------------------- * ADDL.R2: JANU, W/O. LATE KUNHIKANNAN, TRIPPANGOTTUR AMSOM, POYILOOR DESOM, THALASSERY TALUK, KANNUR DISTRICT. *ADDL.R3: CHATHUKUTTY, S/O.LATE KUNHIKANNAN, -DO- -DO- *ADDL.R4: BHASKARAN -DO- -DO- *ADDL.R5: BALAN -DO- -DO- *ADDL.R6: CHANDRAN -DO- -DO- *ADDL.R7: BABU -DO- -DO- *ADDL.RESPONDENTS 2 TO 7 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 8/3/2011 IN I.A.NO.1689/2001 ADDL.R2 TO R7 BY ADV. SMT.VIDHYA. A.C SMT.ARCHANA NARAYANAN SMT.CHITHRA JAYAPRAKASH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts S.A.NO.343/1997 ORDER ON C.M.P.911/1997 IN S.A.NO.343/1997 DISMISSED 12/4/2011 SD/- P. BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO.JUDGE sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 343 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of April, 2011. JUDGMENT The plaintiff in O.S. 608 of 1992 before the Munsiff's court, Kuthuparamba, who was non-suited by the court below is the appellant. 2. The suit was one for injunction. The plaintiff claimed to have obtained plaint schedule property as per Ext.A1 dated 7.3.1979. Property on the southern side is said to have belonged to one Cheerootty. He had filed O.S. 290 of 1987 for demarcation of the boundary between her property and the plaintiff's property. A commissioner was deputed in the said suit and he has filed a report based on the inspection. It was determined in the said suit that out of the four plots A, B, C and D, the plaintiff in the said suit had right over only A plot, B, C and D plots formed the property of the defendant in the said suit. Plaintiff in the S.A.343/1997. 2 present suit is the assignee from the defendant in the said suit. The defendant in this suit purchased the property from Chererooty. Though the boundary was determined in the earlier suit, no boundary as such was laid and therefore the defendant is trying to trespass into the property and the plaintiff wants to put up a boundary as determined in the earlier suit. The defendant objected to the same and began to obstruct the act of the plaintiff of putting up a boundary and hence the suit. 3. Defendant resisted the suit by pointing out that even though the boundary was determined in the earlier suit, Cheerooty was in possession of plots C and D shown in the plan appended to Ext.A2 decree dated 30.9.1991. The plaintiff has obtained A schedule property and it is not identifiable going by the description in the plaint. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the above pleadings issues were raised by the trial court. The evidence consists of Exts.A1 to A6(b) S.A.343/1997. 3 from the side of the plaintiff and Exts. B1 to B4 from the side of the defendant. Neither side adduced any oral evidence. The trial court based on the measurements shown in Ext.A1 came to the conclusion that it could not be said that that B, C and D plots in the plan attached to Ext.A2 decree belonged to the defendant in the earlier suit. Finding that the plaintiff in the present suit had not independently established his title and possession over the suit property, the suit was dismissed. 5. The plaintiff carried the matter in appeal as A.S.190 of 1994. The lower appellate court confirmed the judgment and decree of the trial court. 6. Notice is seen issued on the following questions of law: “1. When the plaintiff in the earlier suit admitted that there was no clear demarcation boundary between the property of the plaintiff and defendant and prayed for fixation of boundary by the court and the court fixed the same at a particular line, is not the defendant who is a S.A.343/1997. 4 subsequent assignee from the plaintiff in the earlier suit bound by the decree by the principle of res judicata? 2. When in the earlier suit between the plaintiff and predecessor in interest of the defendant there was a decree demarcating the boundaries of the properties held by them is not the defendant bound by the decree and is he not estopped from contending that he is in possession of property which was held to be within the possession of the plaintiff in the present suit who was the defendant in that suit. 3. When the dispute in the suit for injunction relates to a narrow strip of land, is not the decision in the earlier shit for fixation of boundary wherein the narrow strip of land was found to be belonging to the plaintiff in the present suit a material and conclusive evidence of possession of the plaint schedule property, and is not the finding of the courts below dismissing the suit for want of independent evidence of possession unsustainable in law.” S.A.343/1997. 5 7. Learned counsel appearing for the appellant pointed out that the courts below have erred both on facts and in law in dismissing the suit. The predecessor in interest of the parties were litigants in O.S. 290 of 1987, which was one for determination of the boundary between the properties of the plaintiff and the defendant in the present suit. The bone of contention was regarding B, C and D plots. The predecessor in interest of the defendant in the present suit had laid the suit claiming that B, C and D plots shown in the plan appended to the decree produced as Ext.A2 in this case belonged to them and the defendant had no right over B, C and D plots. However, in the said suit it was found that the plaintiff in O.S.290 of 1987 did not have title to C and D plots and therefore the northern boundary of the plaintiff's property in the said suit was determined accordingly. According to the counsel the defendants in the said suit had claimed C and D plots. Learned counsel for the appellant contended that the courts below were not justified in re-agitating the issue which had been concluded in the S.A.343/1997. 6 earlier suit. It is contended that a decree ought to have followed in the present in the suit. 8. Learned counsel appearing for the respondent on the other hand pointed out that in the earlier suit all that was determined was the boundary and not possession. Even though boundary was determined by the court below, the plaintiff in the earlier suit continued to be in possession of C and D plots and therefore the plaintiff in the present suit who are successors of the defendant in the earlier suit have to independently establish their title to C and D plots in the plan appended to Ext.A2 decree. Therefore the courts below were justified in dismissing the suit. 9. It is not in dispute that O.S.290 of 19897 was filed by the predecessor in interest of the defendant against the predecessor in interest of the plaintiff in the present suit. That was a suit for fixation of northern boundary of the property of the plaintiff in the said suit which has been obtained by the defendant in the present suit. A perusal of Ext.A3, which is the judgment in O.S. 290 of 1987 clearly S.A.343/1997. 7 shows that the plaintiff in the said suit had laid claim over C and D plots also as part of the property covered by the document of title produced in the said case. Defendant in the said case, who is the predecessor in interest of the plaintiff in this case had on the other hand contended that C and D plots shown in the plan belonged to them and it was covered by their document of title. The commissioner deputed in O.S.290 of 1987 has measured the properties and submitted a plan and determined the boundaries. Going by the decision in the earlier suit, it was found that the document of title of the plaintiff in the earlier suit did not take in C and D plots shown in the plan. Therefore it means that C and D plots belonged to the defendant in the said suit as the boundary in between the properties was determined by the decree in O.S. 290 of 1987. It must be noticed that B schedule shown in the earlier suit which is the property said to belong to the defendant in that suit is the present plaint schedule property. The issue regarding boundary having been determined in the earlier suit, the defendant in the S.A.343/1997. 8 present suit cannot re-agitate the said issue in the present suit. Inspite of the decree in the earlier suit, the contention is that the defendant is in possession of C and D plots. Both the courts below have calculated the extent of property in the document of title produced by the plaintiff converting the kole measurement into cents and held that the plaintiff had laid claim to a larger extent. What needs to be noticed is the boundary of the property and not the extent of the property. Boundary of the properties had been determined in the earlier suit and the plaintiff in the present suit was seeking relief in respect of the property which was within the boundary laid as per the earlier suit. There is no reason as to why relief should have been declined to the plaintiff. 10. The question is whether the plaintiff in the present suit is entitled to a decree. The lower appellate court seems to be of the view that the present plaintiff being successor in interest of the defendant in the earlier suit could not execute the decree. It is trite that decree for laying boundary is in favour of both the plaintiff and the S.A.343/1997. 9 defendant and either can execute the same. Whatever that be, the plaintiff in the present suit, who is the successor in interest of the defendant in the earlier suit is entitled to execute the decree as determined by Ext.A3 judgment and Ext.A2 decree and there is no reason why that should be rejected. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the there will be a decree as prayed for by the plaintiff in the present suit. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.