IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH NOVEMBER 2007 / 5TH AGRAHAYANA 1929 SA.No. 624 of 1994() -------------------- AS.43/1983 of SUB COURT,KOTTARAKKARA OS.75/1980 of MUNSIFF'S COURT, KOTTARAKKARA .................... APPELLANTS-APPELLANTS 3 TO 7, PLAINTIFFS 4 TO 8: ---------------------------------------------------------------------------------- 1. GOVINDA PILLAI CHELLAPPAN PILLAI, ELAYIDETHU VEEDU, KARICKAL MURI, PAVITHRASWARAM VILLAGE. 2. EASWARI AMMA SAROJINI AMMA OF ..DO... 3. GOVINDA PILLAI GANGADHARAN PILLAI OF ..DO... 4. GOVINDA PILLAI SANKARANARAYANA PILLAI OF ..DO... 5. EASWARI AMMA RAJAMMA OF..DO... BY ADV. SRI.P.G.PARAMESWARA PANICKER(SR) SRI.P.GOPAL RESPONDENTS: RESPONDENTS 1 TO 7 & 9 TO 13-DEFENDANTS 1 TO 7 AND LEGAL HEIRS: ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY. 2. RAMAN PILLAI KUTTAN PILLAI, VAZHUVELI PUTHEN VEEDU, KIZHAKKEKARA MURI, KOTTARAKKARA VILLAGE. 3. KRISHNASWAMI REDDIAR KANTHASWAMI REDDIAR, ENGAVILASOM BUNGLOW OF ..DO... 4. SANTHAMMA, W/O.RENGANATHA REDDIAR OF ..DO... 5. GOPALAKRISHNAN OF ..DO... 6. RADHAKRISHNAN OF ..DO... 7. NAVANEETHAKRISHNAN OF ..DO... Kss ..2/- ...2.... S.A.NO.624/1994 8. SARADHA KUMARI, W/O.MADHAVANKUTTY NAIR, LEKSHMI VIHAR, KIZHAKKEKARA, KOTTARAKKARA. 9. MADHAVANKUTTY NAIR SUKUMAR OF ..DO.... 10. SARADAKUMARI LEKSHMI OF ...DO.... 11. SARADAKUMARI GEETHA OF ...DO..... 12. MADHAVANKUTTY NAIR UNNIKRISHNAN OF ..DO.... BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) for R8 to R12 BY GOVERNMENT PLEADER SRI. L.G. SURESH BABU for R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 624 OF 1994 ............................................ DATED THIS THE 26th DAY OF NOVEMBER, 2007 JUDGMENT Plaintiffs 4 to 8 in O.S.75 of 1980 on the file of Munsiff Court, Kottarakkara are the appellants. Defendants 1 to 7 and legal heirs of 8th defendant are the respondents. Suit was filed for declaration of leasehold right over 25 cents in Survey No.124/26A of Kottarakkara Village. It was contended that first plaintiff obtained the said property as per registered lease deed 361 of 1125 M.E and second defendant obtained 17 cents of land on the north-western portion of the said property and he sold that property to 3rd defendant and the predecessor in interest of defendants 4 to 7 and the second defendant sold the right in favour of third defendant and Renganatha Reddiar, the predecessor in interest of defendants 4 to 7 and that right was purchased by 8th defendant and defendants 9 to 13 are his successors in interest. It was contended that second defendant filed an application for measuring the property purchased by him and the Taluk Surveyor prepared a plan showing portion of the property of the plaintiff as part of the land purchased by second defendant and plaintiff filed an appeal against the demarcation SA 624/1994 2 of properties by the Surveyor which was decided against. Suit was instituted seeking declaration of the leasehold right and to set aside the orders in the appeal filed against that order and the order in the revision. First plaintiff died during the pendency of the suit and appellants were impleaded as his legal heirs. Plaintiff had contended that no notice was served on him and O.S.299 of 1966 was earlier filed and he was a party in that suit and a plan was prepared by the Commissioner in that suit, the dispute in the present suit was not an issue in the other suit and therefore plaintiff is entitled to the decree sought for. Suit was resisted by defendants contending that suit is barred by resjudicata in view of the decision in O.S.299 of 1966. It was also contended that the survey conducted was in confirmity with the approved survey plan and plaintiffs are not entitled to challenge the same. It was also contended that the entire 95 cents in that survey Number was located and a plan was prepared in O.S.299 of 1976 and that plan was accepted by the court and Ext.B10 judgment was passed and it is binding on the plaintiff and therefore the suit is only to be dismissed. It was also contended that the suit is barred by resjudicata in view of Ext.B2 judgment in O.S.192 of 1975 filed by same plaintiff. 2. Learned Munsiff, on the evidence of PW1, Dws 1 to 3 and Exts.A1 to A12, B1 to B10, C1 to C3 and Ext.X1 and X2, SA 624/1994 3 dismissed the suit holding that suit is barred by resjudicata in view of Ext.B10 and B2 judgments the decision in O.S.299 of 1966 and O.S.192 of 1975. Plaintiff challenged the judgment before Sub Court, Kottarakkara in A.S.434 of 1983. Learned Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. The second appeal was admitted formulating the following the substantial questions of law. 1) Whether courts below properly applied the principles of resjudicata. 2)Whether an issue between the parties arrayed on the same side would operate as resjudicata, between co-defendants. 3)Whether findings of courts below that judgment in O.S.299 of 1966 and O.S.192 of 1975 would operate as resjudicata is sustainable. 4. Learned counsel appearing for appellants and learned counsel appearing for respondents were heard. 5. The original plaintiff instituted the suit for a declaration of title in respect of 30 cents, which was subsequently reduced to 25 cents, in Survey No.124/26 of Kottarakkara Village claiming that it is the property obtained under registered lease deed 361/1125 M.E. It was the case of plaintiff that second SA 624/1994 4 defendant obtained 17 cents of the property which lies to the north-west of that property which was subsequently purchased by 3rd defendant and Renganatha Reddiar and thereafter by 8th defendant and the survey plan prepared at the instance of second defendant is not correct and plaintiff is entitled to a declaration of his leasehold right and to set aside Ext.A1 decision of the Supreintendent of Survey Land Records in the appeal filed by plaintiff and Ext.A2, the decision of the Secretary of the Revenue challenging Ext.A1 order and Ext.A6, the decision of the District Collector. Registered Lease deed 361/1125 M.E, under which plaintiff claimed title to the property, was not produced. It is admitted case that O.S.299/1996 was filed by Aliyamma Alikutty before Munsiff Court, Kottarakkara and plaintiff in the present suit was the 4th defendant in that suit. Second defendant was the third defendant. It is also admitted case that 95 cents in Survey No.124/26 originally belonged to Sankara Pillai Govinda Pillai who alienated the property under different documents to the parties to that suit. Plaintiff who was the 4th defendant in that suit was claiming 30 cents in that suit. That suit was filed for declaration of title and possession and for fixation of boundary of plaintiff Aliyamma Alikutty who claimed title to a portion of 95 cents under Sankara Pillai Govinda Pillai. Ext.B10 judgment shows that a Commissioner was appointed and SA 624/1994 5 the Commissioner demarcated the properties belonging to the parties including the 4th defendant in that suit. Ext.B1 is the decree. Ext.B1 and B10 establish that the property obtained by the plaintiff in this suit was specifically demarcated in the plan as the property obtained under the lease deed claimed by plaintiff in this case. Learned Munsiff and learned Sub Judge found that in view of the fixation of the boundaries of the property of the plaintiff under Ext.B10 judgment and B1 decree, they are binding on the plaintiff. The argument of the learned counsel appearing for appellant is that as the plaintiff and second defendant were respectively defendants 4 and 3 in that suit, Ext.B10 judgment will not operate as resjudicata as against co-defendants and therefore finding of courts below is not sustainable. I cannot agree with the submission. Though property of the plaintiff, 4th defendant in that suit, was not specifically scheduled in the plaint, that suit was not only for declaration of title of the plaintiff therein, but also for fixation of boundaries. The boundaries could be fixed only by fixing the boundaries claimed by defendants in that suit, including plaintiff herein. Therefore when the boundaries of the properties scheduled in the plaint was demarcated, the demarcation depends upon the correctness of the demarcation of the property of 4th defendant therein also. Any deviation from that plan with SA 624/1994 6 regard to the property of 4th defendant would automatically amount to varying the boundaries of the plaintiff in that case. In such circumstances, as rightly found by courts below, fixation of the boundary in Ext.B10 judgment including fixation of boundary of the property of 4th defendant the plaintiff herein will be binding. As that judgment has become final, plaintiff is not entitled to seek modification of the said boundary by filing a separate suit. Moreover, subsequent to Ext.B10 judgment plaintiff filed O.S.192 of 1975, a suit for injunction in respect of this property. As per Ext.B2 judgment, that suit was dismissed following Ext.B10 judgment in O.S.299 of 1966. That judgment has also become final. Ext.B2 judgment is definitely binding on the plaintiff. Therefore courts below rightly found that suit is barred in view of Ext.B2 and B10 judgments. Appellants are therefore not entitled to the decree sought for in the suit. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/- SA 624/1994 7 M.SASIDHARAN NAMBIAR, J S.A.624 OF 1994 JUDGMENT 26.11.2007