IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 RSA.No. 936 of 2008() --------------------- AS.108/2005 of III ADDL. SUB COURT, KOZHIKODE OS.120/2003 of ADDITIONAL MUNSIFF'S COURT-I,KOZHIKODE. .................... APPELLANTS/APPELLANTS/PLAINTIFFS:- ---------------------------------------------- ILLATH SREEMATHI (DIED) 1. J.SASEENDRAN, S/O SREEMATHI, VANGALIPOYIL HOUSE, P.O. ELATHOOR, KARANNUR AMSOM, PUTHUR DESOM, KOZHIKODE TALUK. 2. V.I. ARAVINDAKSHAN, S/O SREEMATHI, VENGALIPOYIL HOUSE, P.O. ELATHOOR, KARANNUR AMSOM, PUTHUR DESOM, KOZHIKODE TALUK. BY ADV. SRI.MILLU DANDAPANI RESPONDENT/RESPONDENT/DEFENDANT --------------------------------------------- VENGALIPOYIL VELAYUDHAN, S/O MALU, P.O. ERANHIKKAL, KARANNUR AMSOM AND PUTHUR DESOM, KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 936 of 2008 ========================== Dated this the 5th day of December, 2008. JUDGMENT The legal representatives of the plaintiff in O.S. No. 120 of 2003 on the file of the Munsiff's Court-I, Kozhikode are the appellants in this Second Appeal. The said suit instituted by the original plaintiff was one for a mandatory injunction directing the defendant to demolish that part of the construction in the plaint B schedule karaima property admeasuring 2 cents which encroaches into the plaint A schedule property other than the two cents belonging to the plaintiffs. 2. The facts which are either admitted or proved in the case are the following:- The plaintiff's mother had right over 27 cents of land described in the plaint A schedule property. While so, the defendant's mother purchased 2 cents of property therefrom on karaima right as per Ext.A2 registered karaima kaicheet of the year 1953. The said 2 cents is the plaint B schedule property. Thereafter, the defendant's mother obtained Ext.B1 certificate of R.S.A. No. 936/2008 : 2: purchase dated 31.08.1976 in respect of the said two cents of land pursuant to the order passed by the Land Tribunal in O.A. No. 5693/76 in which the plaintiff's mother was the respondent. The defendant thereafter filed O.A. No. 221 of 1992 before the Land Tribunal for purchase of the right, title and interest of the landowner, namely the plaintiff, in respect of 4.65 cents lying contiguous to the said Ext. B1 karaima property and lying within the plaint A schedule property. Initially, the said O.A. No. 221 of 1992 was allowed by the Land Tribunal. On appeal by the plaintiff as A.A. No. 63 of 2000 before the Appellate Authority, Kannur, the Appellate Authority as per Ext.A5 judgment dated 23.06.2005, set aside the order passed by the Land Tribunal and remanded the case to the Land Tribunal where it is still pending. 3. The case of the plaintiff is that in as much as the Land Reforms Appellate Authority has as per Ext.A5 judgment, set aside the order passed by the Land Tribunal with regard to the 4.65 cents comprised in the plaint A schedule property and lying contiguous to the plaint B schedule karaima land, the defendant has no right to put up a construction in the karaima property in R.S.A. No. 936/2008 : 3: such a way as to encroach into any part of the plaint A schedule property including the 4.65 cents lying outside the plaint B schedule property. Even though the plaintiff took out a commission to identify the properties, he did not seek any survey assistance. With the result, the Commissioner examined as CW1 prepared Exts.C1(a) and C2(a) rough sketches on the basis of which it was not possible for both the courts below to decide whether the offending construction encroaches into any part of the plaint A schedule property. To put it otherwise, the courts below were not able to conclusively hold that the offending construction was confined to the plaint B schedule karaima land only. Even before the lower appellate court, the plaintiff did not ask for a survey commission. Hence the courts below were constrained to dismiss the suit. Hence this Second Appeal. 4. The following substantial questions of law have be formulated in the memorandum of Second Appeal. i. Whether the courts below justified in dismissing the suit when the respondent himself admit the fact that he is possessing more extent than 2 cents and he has not pleaded and proved any title/adverse title with respect to the said excess extent in his possession? R.S.A. No. 936/2008 : 4: ii. Whether the Lower Appellate Court justified in dismissing the Suit without giving due importance to Ext.A5 document? Iii. Whether the courts below justified in dismissing the Suit holding that there is no proper identification? 5. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:- O.A. No. 221 of 1992 filed by the defendant seeking purchase of the right, title and interest in respect of the 4.65 cents of land from out of the plaint A schedule property was clearly hit by the principles of constructive resjudicata falling under Explanation (iv) to Section 11 C.P.C and if so, O.A. No. 221 of 1992 is sure to be dismissed in which case the right of the defendant will remain confined to the plaint B schedule karaima property admeasuring 2 cents only. With the dismissal of the suit, the plaintiff has lost his opportunity to prove his title over the plaint A schedule property excluding the karaima property of two cents. 6. The defence of constructive resjudicata is not for the Civil Court to decide. Such a defence if available to the plaintiff, will have to be set up and pursued when O.A. No. 221 of 1992 is R.S.A. No. 936/2008 : 5: taken up for consideration after the remit from the appellate authority. The appellants were non suited mainly for the reason that they did not take out a survey commission to identify both the plaint A and B schedule properties. Hence, I see no reason to interfere with the decrees passed by the courts below. The substantial questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed. However, I hasten to clarify that the dismissal of the suit will not preclude the plaintiff from filing a suit for recovery of possession or for compensation, if so advised, with regard to the offending construction in case it encroaches into any part of the plaint A schedule property and the plaintiff's title over the plaint A schedule property shall not be deemed to have been decided in these proceedings. Dated this the 5th day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A. No. 936/2008 : 6: