IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 SA.No. 816 of 1996(E) --------------------- AS.5/1995 of DISTRICT COURT, KASARAGOD OS.11/1993 of SUB COURT, HOSDRUG .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- K.V.KRISHNAN, S/O.AMBADY, RESIDING AT DOOR NO.U.P.4/93, PALLIKKERE 2ND VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. MR.V.R.VENKATAKRISHNAN, SENIOR ADVOCATE MR.S.ANANTHAKRISHNAN RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------- 1. SUDHA, D/O.RAMAN, W/O.VIJAYAN, RESIDING NEAR PAYYANNUR HEAD POST OFFICE, TEMPLE ROAD, P.O. PAYYANNUR, KANNUR DISTRICT. 2. GEETHA, D/O.RAMAN, RESIDING AT ROOM NO.5, BUILDING NO.9, THARDEV POLICE QUARTERS, BOMBAY - 34, MAHARASHTRA. ADV. MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 816 of 1996(E) ORDER ON C.M.P.NO.1718/1996 IN S.A.NO.816/1996. DISMISSED. 20.5.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.816 Of 1996 ---------------------- Dated this the 20th day of May, 2010. J U D G M E N T Appellant is the plaintiff in the suit for partition claiming his one half share over plaint a schedule property. He is claiming title on the basis of Ext.A1 assignment deed executed in his favour. Admittedly, plaint A schedule property originally belonged to the defendants. According to the appellant, one half right belonging to the second defendant was purchased by one Madhavi as per registered sale deed dated 10.10.1983 and the same was assigned to the plaintiff as per Ext.A1 assignment deed dated 11.10.1991. The appellant/plaintiff therefore claimed joint possession as a co-owner and sought partition of his one half share. The trial court held that the suit is barred by res judicata and dismissed the suit. In the appeal preferred by the plaintiff, the lower appellate court confirmed the decree and judgment passed by the trial court and dismissed the appeal. The defeated plaintiff in both courts being aggrieved by the decree and judgment of the lower appellate court has preferred this appeal. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. S.A.No.816 Of 1996 ::2:: 2. The learned senior counsel appearing for the plaintiff submitted that the second defendant had executed a power of attorney in favour of one Vijayan and it is on that basis the sale deed was executed in favour of Madhavi, from whom the appellant/plaintiff got assignment. The present suit was filed by the plaintiff based on Ext.A1 assignment deed. 3. The defendants in the suits opposed the prayer of the plaintiff and contended that two suits, O.S.Nos.158/1983 and 81/1984, filed before the Munsiff Court, Hosdurg ended up in two second appeals will go against the contentions raised by the appellant in the present suit. O.S.No.81 of 1984 was filed by the defendants herein as plaintiffs and O.S.No.158 of 1983 was filed by the first defendant in the present suit. O.S.No.158 of 1983 was filed for permanent injunction and the other for recovery of possession of the residential building from the possession of his uncle. The trial court decreed O.S.No.158 of 1983 and dismissed O.S.No.81 of 1984. The lower appellate court reversed the decree and judgment passed by the trial court. The said judgment and decree was confirmed in second appeals (S.A.Nos.611 & 612 of 1990). S.A.No.816 Of 1996 ::3:: 4. The appellant contended in the present suit that though Madhavi filed a suit for partition and in which the appellant filed an application to get himself impleaded, the suit was happened to be dismissed as not pressed. It is submitted by the learned senior counsel for the appellant that neither the decision in O.S.No.158 of 1983 nor O.S.No.81 of 1984 will operate as res judicata and that the petition filed by the plaintiff claiming title over the property does not bar the plaintiff from filing the present suit. Ext.B7 is the order dated 9.3.1992 in E.A.No.46 of 1992 in E.P.No.368 of 1991 in O.S.No.81 of 1984 on the file of the Munsiff Court, Hosdurg. The defendants in the suit contented that the plaintiff had no right in the plaint schedule property; the second defendant had not executed any power of attorney in favour of one Vijayan; that the right of the second defendant over the plaint schedule property was never assigned to K.K.Madhavi or to the plaintiff by the second defendant. It is also brought to the notice of the court that the plaintiff is none other than the name lender of K.Krishnan, the uncle of defendants 1 and 2, with whom the defendants have to fighting for legal claim for the past several years. According to the S.A.No.816 Of 1996 ::4:: defendants, the claim of the plaintiff is barred under the principles of res judicata, that the claim petitions filed by the plaintiff as E.A.Nos.26 & 46 of 1992 were dismissed by the learned Munsiff as per Exts.B6 and B7; and that K.K.Madhavi, the predecessor-in-interest of the plaintiff had filed a petition which was dismissed for default. Exts.B10 and B11 are the decree and judgment in the said suit. For these reasons and other grounds urged before the court below, the defendants prayed for dismissal of the suit. 5. The trial court as well as the lower appellate court considered the contentions raised by the respective parties. Paragraph 9 of Ext.B7 shows that the plaintiff herein had obstructed delivery and execution. Thereafter, the plaintiff approached the court and filed E.A.No.46 of 1992 claiming right over the property. That claim petition was resisted by the defendants who are the decree holders in O.S.No.81 of 1984. The executing court on the basis of the materials held that the plaintiff herein had absolutely no right or interest over the plaint schedule property. S.A.No.816 Of 1996 ::5:: 6. In the facts and circumstances, there is no merit in the contention that Ext.B7 order cannot be treated as an order passed under Order XXI Rule 98 of the Code of Civil Procedure. The lower appellate court on facts held that there is no bona fides in filing the present suit. The learned Judge observed that the plaintiff is prosecuting the suit and appeal as a mercenary on behalf of the defeated defendants in O.S.No.81 of 1984. The lower appellate court rightly held that there is no merit in the contention of the plaintiff that he had acquired the rights of the second defendant through his vendor K.K.Madhavi under Ext.A1 assignment deed. I find no reason to interfere with the conclusions and findings arrived by the trial court as well as the lower appellate court. In the result, the second appeal fails. No question of law much less any substantial question of law is raised in the appeal and accordingly, it is dismissed with costs. HARUN-UL-RASHID, Judge. bkn/-