IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 RSA.No. 1119 of 2010() ---------------------- AS.60/2007 of 2ND ADDL.DISTRICT COURT, THODUPUZHA OS.55/2005 of MUNSIFF COURT,THODUPUZHA .................... PETITIONERS/APPELLANTS/PLAINTIFF ---------------------------------------------------- 1. MADAVI, AGED 78 YEARS, W/O. LATE ACHUTHAN NARAYANAN KNNIKOMBIL HOUSE,PUPUZHA VILLAGE. 2. PARU @ CHANDRA AGED 66 YEARS, W/O. GOPI, KNIIKOMBIL HOUSE, PUPUZHA VILLAGE. 3. LAKSHMI @ SUKUMARI, AGED 55 YEARS, W/O. KRISHNAN KUTTY, THADATHIL HOUSE, THIRUVAMKLAM KARA, THIRUVAMKLAM VILLAGE. 4. MOHANAN, AGED 47 YEARS, S/O. LATE ACHUTHAN NARAYANAN KNNIKOMBIL HOUSE, PUPUZHA VILLAGE. 5. SUDHARSAN AGED 37 YEARS, S/O. LATE ACHUTHAN NARAYANAN, KNNIKOMBIL HOUSE, PUPUZHA VILLAGE. BY ADV. SRI.SANU.S.PANICKER RESPONDENT(S): DEFENDANTS ------------------------- 1. MADHAVAN @ KUNJU AGED 55 YEARS, S/O. KNJIKELA, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA. 2. KANNAN AGED 53 YEARS, S/O. KNJIKELA, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA. 3. SARO, W/O. KANNAN, AGED 47 YEARS, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA. RSA.No. 1119 of 2010() 2 4. SANKARAN AGED 50 YEARS,S/O.KNJIKELA, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA. 5. KUTTAPPAN @ KUTTI AGED 47 YEARS, S/O. KNJIKELA, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA. 6. KARTHIYANI @ LEELA AGED 41 YEARS, W/O. DAS PALATHINKAL HOUSE, PUKLPALLY VILLAGE, KULANATTIKOLLI KARA. 7. RADHA, W/O.LATE RAJAPPAN, AGED 57 YEARS, NEDUMPARAMBIL HOUSE, PARUPZHA VILLAGE. 8. ARYA, D/O. LATE RAJAPPAN, AGED 24, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA 9. SURYA, D/O. LATE RAJAPPAN AGED 24, NADUPPARAMBIL HOUSE, PURAPUZHA VILLAGE, VAZHITHALA KARA. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1119 OF 2010 -------------------------------- Dated this the 11th day of October 2010 JUDGMENT Concurrent decision rendered by two courts below that the plaintiff is not entitled to the declaration of possession over the suit property is challenged in this appeal. 2. Plaint property having an extent of 1 acre 32 cents was admittedly outstanding on a mortgage. To redeem that mortgage, the predecessor of the defendants had preferred a suit as O.S No.24/1955 and a decree thereof was granted. Subsequently, as between the parties, there was another suit as O.S No.194/1966 in which partition and separate possession were the reliefs canvassed for. That suit ended in a compromise by which the present plaintiffs were alloted 22 cents of land in the plaint property. Contending that the decrees in both the suits are not binding, some among the plaintiffs herein preferred a suit as O.S No.30/1993 seeking a declaration thereof, but, that suit was dismissed. The present plaintiffs, it is also admitted, had preferred another suit O.S No.295/1992 in respect of the plaint property seeking a decree of permanent prohibitory injunction against the defendants. That suit was also dismissed and the decree so passed was confirmed in first and second appeal as well. After dismissal of the above suits O.S No.30/1993 and O.S No.295/1992, the present R.S.A No.1119 OF 2010 - 2 - suit was filed seeking a declaration of possession over the plaint property. The trial court as well as the appellate court, on the materials placed, found that the plaintiff is not entitled to the decree applied for. Impeaching the correctness of that decision concurrently rendered by the two courts below, plaintiff has preferred this appeal. 3. The learned counsel for the appellants/plaintiffs contended before me that both the courts have not framed proper issues in the suit for adjudication and, in fact, though the suit was one for declaration of possession over the suit property, no specific issue on that ground was raised. After the dismissal of the previous suit for injunction, the present suit was instituted 13 years later, according to the counsel, setting forth a different cause of action. But, both the courts giving unmerited consideration to the adverse decisions rendered in the previous suits have hold that the plaintiff is not entitled to the discretionary relief of declaration of possession canvassed in the suit, is the grievance espoused. 4. Perusing the judgment rendered by the courts below with reference to the submissions made by the learned counsel for the appellant, I find no impropriety or any infirmity in the dismissal of the suit. Needless to state that the previous suit for injunction over the very same property was set up by the plaintiffs claiming that they are in possession of the suit property. After adjudication, R.S.A No.1119 OF 2010 - 3 - finding that such claim canvassed by the plaintiffs was not established, the decree sought for was declined. Whatever be the merit of the case canvassed by the plaintiffs over the challenge raised against the compromise decree entered in a previous suit O.S No.194/1966, and also the decree passed in the suit for redemption O.S No.24/1955, or with respect to the delivery of the property purported to have been effected pursuant to the decrees thereunder, no further dilation is called for where it is shown that the present suit is one for declaration of possession after dismissal of a previous suit for injunction by the very same plaintiffs over the same property, claiming such relief on the basis of possession. Subsequent cause of action, which is canvassed as the basis of the present suit, has to be looked into not with reference to the date on which the plaintiffs claim such cause for instituting suit, but on the totality of the facts involved in the case, which, no doubt, demand due note of the adverse decision rendered against them in the previous suit for injunction as well. There is no merit in the second appeal. No question of law leave alone any substantial question of law is involved in the appeal, and, it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE vdv //True Copy// P.A to Judge