IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 SA.No. 678 of 1996() -------------------------------- AS.NO.74/1989 OF SUB COURT, HOSDURG OS.NO.169/1984 OF MUNSIFF'S COURT, HOSDURG. DEFENDANTS/APPELLANTS/APPELLANTS: -------------------------------------------------------------------- *1. AMMAR AMMA, W/O.PULICODAN AMBU, NOONHIYIL, KALLAR VILLAGE, P.O.RAJAPURAM, HOSDURG TALUK, KASARAGOD DISTRICT. ( D I E D) 2. T.KRISHNAN, S/O.PULICODAN AMBU OF ..DO..DO..... 3. K.NARAYANI, D/O.PULICODAN AMBU OF..DO..DO..... 4. P.K.LAKSHMI, D/O.PULICODAN AMBU OF..DO..DO.... * THE 2ND APPELLANT IS RECORDED AS THE SOLE LEGAL HEIR OF THE DECEASED 1ST APPELLANT AS PER ORDER DTD. 17/01/2005 IN MEMO DTD. 10/01/2005 CF 213/05. BY SRI.T.P.KELU NAMBIAR, SENIOR ADVOCATE, BY ADV. SRI. P.G.RAJAGOPALAN, SRI.M.GOPIKRISHNAN NAMBIAR. PLAINTIFF/RESPONDENT/RESPONDENT: ------------------------------------------------------------- **A.U.JOSEPH, S/O.ALAPPAT ULAHANNAN, ARALAMOOLA, KALLAR VILLAGE, P.O.RAJAPURAM, HOSDURG TALUK, KASARAGOD DISTRICT. ( D I E D) - ADDL.R2 TO R5 IMPLEADED) Kss ..2/- ...2.... SA.NO.678/1996 R2. WIDOW - ELSY, ARALAMOOLA, KALLAR VILLAGE, P.O.RAJAPURAM, HOSDURG TALUK, KASARAGOD DISTRICT. R3. CHILDREN - LITTY JOSE, RESIDING AT ....DO..DO..... R4. - LEENA RAJU, RESIDING AT ...DO..DO...... R5. - LIBIN JOSE, RESIDING AT ...DO...DO...... **ADDL.R2 TO R5 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED RESPONDENT AS PER ORDER DTD. 4/12/2008 ON I.A.NO.1397/08. ADDL.R2 TO R5 BY ADVS. SRI.L.GOPALAKRISHNAN POTTI, SRI.DINESH RAO. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2011, THE COURT ON 02/02/2011 DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.1443/1996 IN SA.NO.678/1996 DISMISSED 02/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 678 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of February, 2011. JUDGMENT Defendants in O.S. 169 of 1984 before the Munsiff's Court, Hosdurg are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It may be mentioned here that during the pendency of the appeal the first appellant as well as the first respondent died and their legal representatives have been brought on the party array. 3. The suit was one for declaration of title and injunction. There was a partition in the Kodoth Tarwad as per O.S. 122 of 1934 and the suit property along with other items of property were set apart to the tavazhy of Kodoth Narayani Amma. The partition effected in the tavazhy of Narayani Amma is evidenced by Ext.A1 dated 25.2.1955. The plaint schedule property, which is shown as E1 appended to the partition deed was set apart to the share of S.A.678/1996. 2 Karthiyayani Amma. But in the partition deed dated 25.2.1955 it was set apart to Narayani Amma as item No.32 of Schedule A to Ext.A1 and E2 in the plan attached to the partition deed was seen given to Karthiyani Amma as item No.34 in D schedule. This, according to the plaintiff is a mistake. Narayani Amma was in possession of only plot E2, which had an extent of 93 cents and Karthiyayani Amma was in possession of E1 plot, which had an extent of 87 cents. There is a mistake in the plan attached to the partition deed. Out of the suit property, 57 cents on the northern portion was outstanding in the possession of Pulicodan Ambu. The southern portion of 30 cents was in the possession of Poochakkadan Kannan on tenancy rights. Ambu assigned the 57 cents to the father of the plaintiff, namely, one Ulahannan as per Ext.A3 dated 16.4.1958. Kannan also assigned 30 cents to Ulahannan, the father of the plaintiffs as per Ext.A2 dated 16.4.1958. Plaintiff's father Ulahannan purchased jenm right from Karthiyayani Amma. Therefore the property came into the exclusive possession S.A.678/1996. 3 of the father of the plaintiff. Defendants are the legal heirs of Pulicodan Ambu. The properties obtained by the father of the plaintiff as per Exts.A2 and A3 were gifted to the plaintiff as per gift deed dated 12.7.1973, which is Ext.A6. According to the plaintiff, the property adjoining to the north of the suit property is plot E2 in the plan attached to the partition award dated 25.2.1955 and the same was allotted to Narayani Amma. It is claimed by the plaintiff that 93 cents was also outstanding with Pulicodan Ambu and he had tenancy right over the same and he assigned his rights to Koragan and Marthu. According to the plaintiff, the defendants have no manner of right over the suit property. The defendants have managed to procure documents showing right over the suit property. There was an earlier suit in respect of the suit property filed by the defendants against the plaintiff as O.S. 111 of 1976. The said suit was decreed against the father of the plaintiff and an appeal by him met with no success. In Second Appeal, while dismissing the same, this court observed that the title of the S.A.678/1996. 4 parties is left open. Since the defendants are trying to trespass into the property, that led to the suit. 4. The defendants resisted the suit. It is pointed out by them that the subsequent suit is a collusive affair between the father of the plaintiff and the plaintiff. In O.S. 111 of 1976 identical issues were tried by the courts below and found in favour of the defendants. After having met with failure in the earlier suit, Ulahannan, the father of the plaintiff, has now set up the plaintiff with identical claims on the basis that even at the time of earlier suit the property had been gifted to the plaintiff. They therefore pointed out that the suit is barred by res judicata. They disputed the entire property in Sy. No.107 of Panathady village was alloted to Narayani Amma's tavazhy. The tavazhy of Narayani Amma partitioned as per award dated 25.1.1955 and E1 and E2 plots in Sy. No.107 was allotted to Narayani Amma. In a subsequent partition, E1 plot was alloted to Dakshayani Amma, the daughter of Narayani Amma. The allegation that there was a mistake in the plan appended to S.A.678/1996. 5 the partition deed is denied by the defendants. Karthiyayani Amma was never in possession of E1. E1 plot was always in the possession of Dakshayani Amma and she obtained jenm right. Defendants did not claim any right over E2 plot. Pulicodan Ambu, who was in possession of E1 plot had purchased the jenm right over E1 plot in S.M. proceedings No.1949 of 1973. Even though in the earlier suit, father of the plaintiff, namely, Ulahannan in O.S. 111 of 1976 had disputed the title of the plaintiff in that suit and set up title in himself, that was found against him. The suit was instituted by Ambu and on his death the defendants were brought on the party array as his legal heirs. The plaintiff is bound by the decision in O.S. 111 of 1976 and the present suit is only to be dismissed. 5. On the basis of the above pleadings, necessary issues ere raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A14 from the side of the plaintiff. The defendants had D.W.1 examined and Exts.B1 to B13 marked. Exts. C1 S.A.678/1996. 6 to C3 are the commission reports and plan. The trial court on a consideration of the materials before it came to the conclusion that the present suit is not barred by res judicata and that the claim set up by the plaintiff has been proved. Accordingly, a decree was granted in his favour. 6. The defendants took up the matter in appeal as A.S. 74 of 1989 before the Sub Court, Hosdrug. The appellate court confirmed the trial court decree. Hence the Second Appeal. 7. Notice is seen issued on the following questions of law: “(i) Whether the suit is not barred by res judicata, in view of Explanation VI to Section 11 of the Code of Civil Procedure, on showing that the defendant in O.S. 111 of 1976 on the file of the court of the Munsiff of Hosdurg was litigating the said suit in respect of a right claimed in common for himself as well as his son who is the plaintiff in the present suit and had suffered a decree in respect of the plaint schedule property; S.A.678/1996. 7 (ii) Whether the specific findings entered by the courts in Exts. B11 to B13 judgments and decree in relation to the title put forward by the parties will not operate as res judicata as against the plaintiff in the present suit in claiming title to the property; (iii) Whether the observation made in the judgment in S.A. 557 of 1983 (Ext.A11 judgment) while dismissing the appeal in limine, without ordering notice to the respondent therein, giving liberty to the appellant therein (defendant in that suit) to file a fresh suit on title, is binding on the respondent therein; (iv) Whether the lower courts were right in accepting the reports and plan submitted by the Advocate Commissioner on the ground that the defendants have not filed any petition to set aside the reports and plan, ignoring the fact that the defendants have filed specific objections to the reports and plan and it was shown that the truth and the facts stated in the reports and plan are poles apart; (v) Whether the interpretation of the document of title by the lower courts is sustainable in law; S.A.678/1996. 8 (vi) Once it is shown that the parties to Ext.A1 and B2 partition accepted and acted upon the allotments and identity of the properties allotted therein, whether it is open to a person who is claiming right under one of the parties to the partition deed to challenge the allotment made therein and the identity of the properties allotted therein. (vii) Whether the lower courts are right in decreeing the suit when there was no legal evidence adduced by the plaintiff in support of the prayers in the plaint.” 8. Learned counsel appearing for the appellant pointed out that the courts below were not justified in decreeing the suit. It should have been noticed that the present suit is barred by the principle of res judicata even though the plaintiff in the present suit might not have been a party in the earlier suit. Since the derivation of title claimed by the plaintiff is similar to the one set up by the defendants in the earlier suit, the plaintiff in the present suit is bound by the decision in the earlier suit. Courts below S.A.678/1996. 9 have not given much importance to the judgment in the earlier suit and has simply brushed it aside. At any rate, it should have been noticed that the judgments are relevant under Section 13 read with Section 43 of the Indian Evidence Act and the courts below could not have ignored the same. Learned counsel went on to point out that none of the parties to Ext.A1 partition deed had any grievance to the plots allotted to them and the plan attached thereto. It was only in 1976 when the plaintiff's father tried to trespass into the property, the suit had to be laid by the defendants herein. Very same contentions were raised in that suit by the father of the present plaintiff and he contended that the plan contains a mistake and infact Karthiyayani Amma was allotted plot E1. That was found against. The situation now is that there are two inconsistent and incongruous decrees and that should have been avoided by the courts below. Accordingly, it is contended that the courts below have erred in law in decreeing the suit. S.A.678/1996. 10 9. Learned counsel appearing for the respondents on the other hand contended that since the plaintiff is not a party to the earlier suit, the principle of res judicata is not at all attracted. The courts below have meticulously considered the case of either parties and based on the commission report and the evidence in the case has come to the conclusion that the case set up by the plaintiff is correct. It has been found that there was an error in the plan appended to the partition deed of 1955 and that really Karthiyayani Amma was allotted E1 plot and she was entitled to the same. Learned counsel would point out that both the courts below have concurrently found in favour of the plaintiff and no interference is called for in Second Appeal. 10. The claim of the plaintiff is based on the premise that there is an error in the plan attached to Ext.A1 partition deed. Going by Ext.A1 document, item No.32 to A schedule is given to Kodoth Narayani Amma and E2 plot, which is item No.34 to B schedule to Karthiyayani Amma. S.A.678/1996. 11 The claim of the plaintiff is that it was vice versa. Out of 87 cents of property allotted to Karthiyayani Amma, 57 cents were outstanding with Puicodan Ambu and 30 cents with Kannan. The claim set up by the plaintiff is that Ambu and Kannan as per Exts.A2 and A3 assigned their shares in favour of the father of the plaintiff and the father of the plaintiff by Ext.A6 gifted the property to the plaintiff. The defendants would point out that in a subsequent partition deed evidenced by Ext.B2 dated 24.8.1963 the property claimed by the plaintiff was set apart to Dakshayayani Amma, daughter of Narayani Amma. According to them, Pulicodan Ambu was a tenant of portions of both E1 and E2 plots. Defendants' predecessor in interest Ambu had purchased tenancy right as per Ext.A14 dated 9.4.1975. He then instituted O.S. 111 of 1976 against the father of the plaintiff for injunction when his father tried to trespass into the property. The records indicate that the father of the plaintiff did contest the suit. He set up the claim now made by the plaintiff and contended that the plaintiff in the said S.A.678/1996. 12 suit was not entitled to any relief. 11. Ext.B11 is the judgment in O.S. 111 of 1976. It is true that the plaintiff was not a party to the said suit. But that may not by itself is sufficient to hold that Ext.B11 judgment in O.S. 111 of 1976 cannot have any impact. It is useful at this point of time to refer to Ext.B11. That was infact a suit for injunction. It could be seen from a reading of the judgment that the defendant in that suit, that is the father of the plaintiff in the present suit, had set up the very same contentions urged by the plaintiff in this suit. The first issue in the said suit was whether the plaintiff had title and possession over the suit property. 12. The issue went in favour of the plaintiff in that suit. It is contended on behalf of the defendants in the present suit that the said decision operates as res judicata. Both the courts below have declined to consider this issue solely due to the reason that this court while disposing of the Second Appeal filed by the plaintiff's father had made an observation that the issue regarding title is left open. S.A.678/1996. 13 According to both the courts below, the said observation is sufficient to show that the dispute regarding title was not adjudicated in the earlier suit and therefore the present suit is not barred by res judicata. 13. The courts below have omitted to notice that the decision in the Second Appeal was rendered without notice to the respondents in the second appeal. S.A. 557 of 1983 was disposed of at the stage of admission itself without notice to the respondents. Ext.A11 is the relevant judgment. When a proceedings is disposed of without notice to the respondents and especially at the stage of admission, in limine, it is well settled that such a decision is not binding on the respondents in the proceedings. In the decision reported in Yesoda v. Kunhambu (1991(2) K.L.T. 270) it was held as follows: “In view of the decision of the Full Bench of this Court in Thambi v. Mathew (1987(2) KLT 848) there cannot be any merger and the decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on S.A.678/1996. 14 him and the respondent is entitled to ignore the decree of which he had no notice. Under O.XXIII R.1, party to a suit can withdraw or abandon part of the claim. Under O.XXIII, R.1(3) the Court can allow the plaintiff to withdraw from the suit on part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or part of the claim. Such permission shall be granted only when the court is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The defendant in the present suit had obtained a decision in her favour by the dismissal of the suit filed by the plaintiff. Such a decision could be varied only after hearing the concerned parties. An observation made without hearing the defendant does not bind her. It may be remembered that the plaintiff had not filed any application under Order XXIII R.1 to withdraw or abandon any part of the claim. The remark does not amount to bring afresh suit under O.23, R.1. The permission by Court in a judgment to bring fresh suit does not take the case out of bar of res judicata. S.A.678/1996. 15 14. If that be so, the findings of the courts below that the present suit is not hit by res judicata cannot be sustained. It will have to be gone into afresh. 15. The next question that arises for consideration is whether Ext.B11 is admissible in evidence. Of course the judgment in O.S.111 of 1976 is not between interparties to the present suit. However, the fact remains that in the said suit the plaintiffs had alleged that the defendant in the suit, who was none other than the father of the plaintiff herein was trying to assert rights over the suit property and therefore they were constrained to lay the suit for injunction. What is significant is that even though the suit was instituted after the gift deed was executed in favour of the plaintiff, the father of the plaintiff did not reveal the said fact in the said suit and chose to contest the suit on merits. As already noticed, the very same allegations in the plaint in the present suit were taken as contentions by the plaintiff's father in the earlier suit. His contention was that the plan attached to Ext.A1 was wrong S.A.678/1996. 16 and that cannot be relied on. The issue of title was gone into in that suit and it was found against the defendant. 16. The question as to whether such a judgment can be produced as evidence in another case was considered in the decision reported in Abdulla v. Kunhammad Alias Ahamad (1959 K.L.T. 971), wherein it was held as follows: “On the first of the contentions formulated it may be taken as settled by the pronouncements of the Supreme Court in Srinivas Krishna Rao v. Narayan Devji, AIR 1954 SC 379 and Sital Das v. Sant Ram, AIR 1954 SC 6060, that the judgment in a previous suit, though not inter partes, is admissible under S.13 of the Evidence Act, in proof of a transaction or particular instance, in which the right in question was asserted and recognized or denied; it is therefore needless, to refer to earlier cases on the subject of admissibility of such judgments in evidence. But the finding of fact arrived at in the judgment on the evidence in the previous case, is not evidence of that fact in the later case, Kumar Gopika Rama v. Atal singh AIR 1929 PC 99. In another case, the S.A.678/1996. 17 Privy Council observed that “the reasons upon which the ludgment is founded are no part of the transaction and cannot be so regarded, nor can any finding of fact there came to, other than the transaction itself, be relevant i the present case”, Gobinda Narayan v. Shamlal AIR 1931 PC 89. It is unnecessary to multiply cases. Accordingly, in Srinivas Krishna Rao's case, the Supreme Court was prepared to treat the earlier judgment, only s an assertion of the right claimed, and in Sital Das v. Sant Ram the court used the judgment, only to fill up the slight lacuna in the evidence, and to support the oral evidence. In ram Lakhan v. Jai Upadhya, AIR 1929 Patna 749, the prior decree was held to be admissible “under S.13 of the Evidence Act as corroboration of the oral evidence.” It is difficult to think, that an assertion can be made the sole foundation for relief being granted by a court, Maharaj Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer AIR 1937 PC 69. If so, the finding in Ext.A3 confirmed by Ext.A4 could not be made the basis on which a decree can be granted in this case.” S.A.678/1996. 18 17. In the decision reported in Krishnan v. Narayani Pilla (1963 K.L.T. 89) it was held as follows: “I may in this connection observe that on the strength of this adoption, the plaintiffs sued for and obtained decrees for redemption of other mortgages executed by the Swaroopathu tarwad. Exts. P7 and P8 are copies of the judgments in two of such suits. These decisions have not the force of res judicata, as the parties were different, but these are relied on to show that the plaintiffs successfully asserted their right on the strength of the adoption set up in this case. In the circumstances, it do not see any reason to come to a conclusion different from that reached by the courts below.” 18. In the decision reported in Meetheen Mohamed Syedhamin v. Maluchadam Meethan Mohamed (1955 K.L.T. 442) it was held as follows: “Judgments not inter partes are admissible in evidence under S.13 of the Evidence Act. However, the judgment can neither be considered conclusive nor can the findings contained therein be used as evidence. It is not the correctness of S.A.678/1996. 19 the previous decision but the fact that there has been a prior decision that is established by the judgment. “Every judgment is conclusive evidence, for and against all persons whether parties, privies or strangers, of its own existence, date and legal effect as distinguished from the accuracy of the decision rendered; in other words the law attributes unerring verity to the substantive as opposed to the judicial portions of the record.”” 19. Going by the principle laid down in the above decisions, it may be possible to say that Exts.B11 and B13 judgments may not as such operate as res judicata, but are relevant to ascertain the nature of the dispute that was resolved as per the above judgments. It can also be said that there are evidence of what were the issues tried in the earlier suit between the parties. Both the courts below have not considered the effect of Exts.B11 and B13 judgments. 20. There is yet another aspect. It is true that when O.S. 111 of 1976 was laid, Ulahannan, the father of the plaintiff had already gifted the property to the plaintiff. S.A.678/1996. 20 But the father of the plaintiff did not reveal that fact and the evidence of P.W.1, who is the plaintiff would show that he came to know about the proceedings when the appeal was pending before this court from the judgment and decree in O.S. 111 of 1976. He did nothing in the matter. He let the things