IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 SA.No. 560 of 1997() -------------------- AS.106/1993 of SUB COURT, PAYYANNUR OS.87/1992 of MUNSIFF COURT, THALIPARAMBA .................... APPELLANT-RESPONDENTS 1 AND 3-DEFENDANTS 1 AND 3: ------------------------------------------------------------ 1. PERUMACHALLIL KARTHIYANI, D/o. THENAN NEAR KARAYATHUMCHAL U P SCHOOL NEDIYENGA AMSOM AND DESOM POST NEDIYENGA, DIST. KANNUR 2. ELICHI KUNHIRAMAN, NEAR KARAYATHUMCHAL U P SCHOOL NEDIYENGA AMSOM AND DESOM POST NEDIYENGA, DIST KANNUR BY ADV. SMT.VIDHYA. A.C RESPONDENTS-APPELLANTS AND 2nd RESPONDENT-PLAINTIFF AND 2nd RESPONDENT: ------------------------------------------------------------ 1. MATTAPPALLI MATHAI, S/o. MATHAI AGRICULTURIST, RESIDING IN HOUSE NO.655 WARD NO.IV, S.P.NEDIYANGA AMSOM AND DESOM, POST NEDIYENGA, KANNUR DIST 2. PERUMACHALLIL KUNHAMBU NEDIYENGA AMSOM AND DESOM NEAR KARAYATHUMCHAL U.P.SCHOOL POST NEDIYENGA, KANNUR DIST ADV. SRI.K.V.SOHAN FOR R1 SRI.K.RAJEEV FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.560 of 1997G --------------------------------------- Dated this 04th day of December, 2009 JUDGMENT One of the substantial question of law framed for a decision in this second appeal is concerning application of the rule of res judicata which is intended to prevent multiplicity of suits, give finality for litigation and to avoid inconsistency in the verdicts of court. 2. Short facts necessary for decision of the substantial questions of law raised in the second appeal are: 1. Respondent No.1/plaintiff claimed that plaint A schedule and other items originally belonged to Kurichya Koran and on his death it devolved on his children, Ramootty and others who obtained purchase certificate from the Land Tribunal. There was a division of the properties among them and in 1981, respondent No.1 purchased share of some of the legal heirs of Koran. Since some disputes arose between respondent No.1 and other legal heirs of Koran by other legal heirs regarding right of respondent No.1, he filed O.S.No.187 of 1985 for partition and other reliefs and Ext.A1, final decree was passed in that case allotting plaint A schedule to him. He claimed to have taken delivery of the said property on 12-12-1990 and to evidence that produced Exts.A2 and A3, copy of delivery account and receipt. According to respondent No.1, appellants and respondent No.2/defendant Nos.1 to 3 trespassed into the plaint A S.A.No.560 OF 1997 2 schedule and constructed a basement for putting up a house. Respondent No.1 filed O.S.No.114 of 1991 for recovery of possession of the trespassed portion (plaint B schedule) and other reliefs. That suit ended in a dismissal but giving liberty to respondent No.1 to file a proper suit for recovery of possession of the actual extent he got as per Ext.A1, if cause of action arose. Accordingly respondent No.1 preferred the present suit in the court of learned Munsiff seeking recovery of possession of plaint B schedule on the strength of title and alleging by way of fresh cause of action that on the basement already put up in the plaint B schedule (prior to the filing of A.S.No.114 of 1991) appellants and respondent No.2 attempted to construct a house. Appellants and respondent No.2 disputed title of respondent No.1 over plaint A schedule and identity of plaint B schedule. They denied that plaint A schedule was delivered over to respondent No.1 in execution of the decree of the O.S.No.187 of 1985. They claimed that respondent No.1 has no right over plaint B schedule and denied allegation of trespass. Appellant No.1 is in possession of 65 cents in survey 25/1A under an oral lease from its Landlord, constructed a house and dug a well in that property. Appellants and respondent No.2 also claimed that the right if any, of respondent No.1 is lost by adverse possession and limitation. Further contention is that the decision in O.S.No.114 of 1991 operate as res judicata against the present claim of respondent No.1. S.A.No.560 OF 1997 3 Learned Munsiff answered the issue regarding res judicata in favour of appellants and respondent No.2. It was also found that plaint B schedule has not been properly identified. The result was a dismissal of the suit. Respondent No.1 took up the matter in appeal. First appellate court was of the view that bar of res judicata does not apply since learned Munsiff while disposing of O.S.No.114 of 1991 gave liberty to respondent No.1 to file a proper suit for recovery of possession. So far as identity of the disputed property is concerned, first appellate court found with reference to Exts.C1 to C3 that identity is proved. It also observed that the question of identity was not raised by 'counsels'. First appellate court granted a decree in favour of respondent No.1. That is under challenge by the appellants/defendant Nos.1 and 3. The following substantial question of law are framed for a decision: (i) Would not the decree in O.S.No.114 of 1991 of the Munsiff Court, Taliparamba operate as res judicata against the present suit? (ii) Is respondent No.1 in a suit for mandatory injunction and recovery entitled to a decree when the property has not been properly identified? (iii) In the facts and circumstances of the case is the decree of the lower appellate court reversing the decree of the trial court legally sustainable? On the question of application of rule of res judicata learned counsel S.A.No.560 OF 1997 4 for appellants contended that the very same issues raised in O.S.No.114 of 1991 are raised for a decision in the present suit also, cause of action pleaded in both the suits are the same, respondent No.1 cannot circumvent application of the rule by an ingenious method of putting up further cause of action apart from the one already pleaded in O.S.No.114 of 1991 and that liberty granted by the learned Munsiff while disposing of O.S.No.114 of 1991 is not sufficient to remove the bar of res judicata given statutory recognition by section 11 of the Code of Civil Procedure (for short, “the Code”). Learned counsel has placed reliance on the decisions in Fateh Singh and Ors and Jaganath Baksh Singh and Anr (AIR 1925 Privy Counsel 55), Subha Goundan Vs. Rangai Goundan (AIR (33) 1946 Madras 141) and, Ganesh Vs. Baidyanath Jha and Ors (AIR 1958 Patna 270). Learned counsel for respondent No.1 would contend that no question of res judicata would arise in this case since the finding in O.S.No.114 of 1991 was in favour of title claimed by respondent No.1 though, technically the suit happened to be dismissed for want of proper identification of the suit property as reported by the Commissioner and hence, liberty given by the learned Munsiff to file fresh suit is valid. It is also contended that finding regarding title in O.S.No.114 of 1991 would operate as res judicata against appellants precluding them from contending that they have title over any portion of plaint B schedule. learned counsel has placed reliance on the S.A.No.560 OF 1997 5 decisions in Sankaranarayanan Nair Vs. Devasahayam Manas (1963 KHC 171 – 1963 KLT 664), Ramadhar Shrivas Vs. Bhagwandas (2005 KHC 2239) and Pawan Kumar Gupta Vs. Rochiram Nagdeo (1999 KHC 1157) 3. Res judicata is a rule of law. It does not take away the jurisdiction of the Court but it bars investigation and decision in a suit or on an issue which was directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim and which issue has been heard and finally decided in the former suit. In this case plea of res judicata is based on Exts.A4 and A5, copy of judgment and decree in O.S.No.114 of 1991. It is not disputed that the present suit and the former suit concern the same subject matter, plaint A and B schedules respondent No.1 claiming title over plaint A schedule as per Ext.A1, final decree and alleging that appellants and respondent No.2 trespassed into and took possession plaint B schedule which according to respondent No.1 is portion of plaint A schedule. In O.S.No.114 of 1991 respondent No.1 pleaded that appellants and respondent No.2 trespassed into plaint B schedule and constructed a basement. In the present suit the cause of action alleged is that appellants and respondent No.2 constructed a house on that basement. Appellants and respondent No.2 denied title of respondent No.1 in the schedule properties in O.S.No.114 of 1991 also. They also disputed identity of plaint B schedule as contended in the S.A.No.560 OF 1997 6 present suit. In O.S.No.114 of 1991 an Advocate Commissioner was appointed to identify the properties. Commissioner filed report and plan. Exts.A1 to A3 marked in the present case was marked in O.S.No.114 of 1991 also. Learned Munsiff held in paragraph 13 of the judgment in O.S.No.114 of 1991 (Ext.A4), “Considering the entire evidence the plaint B schedule property as identified by the Commissioner in Ext.C1 plan covers portions of the property allotted to the defendants and it is also as per Ext.A1, final decree. In the circumstance, I find that the plaintiff has got title and possession only over some portions of plaint B schedule property and that plaintiffs title is to the said portions is not barred by adverse possession and limitation and further that the plaintiff is not having possession and title over the entire plaint B schedule property is claimed by the plaintiffs”. In paragraph 14 learned Munsiff held, “It follows from the above findings that the plaintiff is not entitled to the relief as prayed for in the present suit and considering the circumstance there will be no order as to cost. However, if there is cause of action as to the property actually allotted to the plaintiff as per Ext.A1, final decree plaintiff seek the opportunity to file a proper suit.” The above observations would show that when the court held that respondent No.1 has title over some portion of plaint B schedule property as identified by the Advocate Commissioner it also meant that respondent No.1 has no title over the remaining portion of plaint B S.A.No.560 OF 1997 7 schedule. I must bear in mind that in the present case the very same plaint B schedule referred to Exts.A4 and A5 is sought to be recovered on the strength of title. The findings in O.S.No.114 of 1991 are that plaint B schedule has not been properly identified, respondent No.1 has no title over the entire B schedule as identified by the Advocate Commissioner and hence respondent No.1 is not entitled to recover possession of plaint B schedule on the strength of title pleaded by him relying on Exts.A1 to A3. Liberty to file proper suit is not concerning plaint B schedule but concerning the property which respondent No.1 actually got under Ext.A1. Now, two questions arise for a decision - one, whether the findings above referred in Ext.A4 operate as res judicata against respondent No.1 or against appellants and second, whether the liberty for filing a proper suit would remove the bar of res judicata against respondent No.1. 4. Does the finding that respondent No.1 has title and possession of some portion of plaint B schedule operate as res judicata against the appellants?. Pawan Kumar Gupta Vs. Rochiram Nagdeo (supra) was a case where on the strength of title, plaintiff sued the defendant for eviction from tenanted premises on the ground of rent arrears. Defendant contended that plaintiff has no title over the property as he is only a name lender, real landlord being his father. In the course of proceeding defendant deposited the rent arrears. The Court found that plaintiff has title over the building but dismissed the S.A.No.560 OF 1997 8 suit for the technical reason that defendant deposited the rent arrears. In a subsequent similar suit defendant again contended that plaintiff has no title over the building. It was contended that plea of defendant is barred by res judicata in view of the finding in former suit about title of plaintiff. In favour of defendant it was contended that no question of res judicata would arise since the former suit was dismissed in his favour. The Supreme Court held in paragraph 15 of the judgment that though the word “dismissed” has been employed in the last paragraph of the judgment in the former suit, a reading the judgment as a whole would show that plaintiff won the suit, dismissal was for no fault of the plaintiff or any other technical reason but only as defendant deposited the rent arrears during pendency of the suit. There was also a direction in the judgment (and decree) in the former suit that rent deposited could be withdrawn by the plaintiff. If defendant were aggrieved, he could have challenged judgment and decree in appeal. Hence finding in the former suit operated as res judicata against the defendant. That finding was essentially for the reason that defendant had an opportunity to file an appeal against the judgment and decree in the former suit though it was dismissed in his favour since the judgment and decree directed that rent deposited by defendant could be withdrawn by plaintiff. So far as the case on hand is concerned, judgment and decree in O.S.No.114 of 1991 is entirely in favour of appellants in that following the finding that respondent No.1 has no S.A.No.560 OF 1997 9 title over the entire B schedule as identified by the Commissioner Court refused to grant recovery of possession or any other relief in respect of plaint B schedule and dismissed the suit. In such a situation appellants could not have preferred an appeal since no part of the decree was against them. Sections 96 and 100 of the Code permit appeal from only a decree at the instance of a person prejudicially or adversely affected by the decree and not against a mere finding. It has been so held by the Supreme Court in Banersi and others Vs. Ram Phal (AIR 2003 SC 1989). In paragraph 8 of the judgment it was held, “Section 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against the decree and not against the judgment” (emphasis supplied) 5. The decision in Ramadhar Shrivas Vs. Bhagawandas (supra)also cannot help respondent No.1 to successfully contend that the finding in O.S.No.114 of 1991 operated as res judicata against S.A.No.560 OF 1997 10 appellants. In that case the suit was dismissed in favour of the defendant though his contention that plaintiff had no title over the building was negatived, holding that defendant was in lawful possession as a tenant under the predecessor-in-interest of the plaintiff. Plaintiff who lost the suit preferred an appeal. The appeal was dismissed upholding all findings entered by the trial court. In a subsequent suit for eviction of defendant on the premise that he, as a tenant defaulted payment of rent, defendant raised the plea that plaintiff had no title to the building. That plea was found to be barred by the decision in the former suit. Finding in the former suit operated as res judicata since when plaintiff preferred appeal against dismissal of the (former) suit, defendant had opportunity to challenge the adverse finding against him. He either did not do so or failed in that. Appellate judgment in the former suit therefore operated as res judicata against the defendant. That view has been taken by this Court in John Vs. Kalliyani (1988 (2) KLT 921). 6. In so far as the decree in O.S.No.114 of 1991 was in favour of appellants, merely for the reason, even if it is so assumed that an observation or finding was made against them, they could not have maintained an appeal. In Ramesh Chandra Vs. Shiv Charan Dass (AIR 1991 SC 264) the supreme court held that one of the tests to find whether former decision is res judicata is to ascertain whether the party aggrieved could challenge it. When the suit is wholly dismissed S.A.No.560 OF 1997 11 in favour of the appellants, an adverse observation or finding made in the judgment against them cannot operate as res judicata. In Pawan Kumar Gupta's case, the defendant had an opportunity to file appeal as he could be said to be prejudicially affected by the decree which permitted plaintiff who, defendant contended had no title over the building to withdraw the rent arrears he had deposited in the suit. That decision cannot apply to the facts of the present case. Hence the argument of learned counsel for respondent No.1 that the finding in Ext.A4, judgment against the appellants would operate as res judicata cannot succeed. 7. Then the question is whether the finding in Ext.A4 would operate as res judicata against respondent No.1. Learned counsel for respondent No.1 would contend that finding in Ext.A4 regarding want of title over the entire B schedule property is only based on the finding that there is no proper identification of the property but in the present case there is proper identification of the property. It is in this connection that learned counsel has placed reliance on the decision in Sankaranarayanan Nair Vs. Devasahayam Manas (supra). That was a case where recovery of possession of the suit property was sought (in the former suit) from the plaintiff on the strength of a lease arrangement. He resisted the suit contending that he acquired title over the property as per Ext.D15 and hence he is not liable to be evicted. The Court held that it was not necessary to go into title S.A.No.560 OF 1997 12 claimed by the plaintiff (as defendant in the former suit) on the strength of Ext.D15 and left that issue open for consideration after plaintiff (as defendant in the former suit) yielded up his possession as prayed for in the earlier suit and then sought for recovery of possession on the strength of Ext.D15. On the facts of that case it was held in paragraph 6 of the judgment relied, “ I do not think that the implication of the decree can prevail against the express statement that the issue which is now being pleaded as res judicata was not being decided, and it would therefore follow that the issue was not heard and finally decided so as to attract section 11 of the Code.” Reading of the decision would show that right of plaintiff (defendant in the former suit) to recover possession of suit property on the strength of Ext.D15 was specifically left open for consideration after he surrendered possession (to the plaintiff in the former suit). The issue whether plaintiff in the subsequent suit was entitled to recover possession of the property on the strength of Ext.D15 was not an issue which arose for consideration in the previous suit, nor heard and finally decided. Hence question of application of section 11 of the Code did not arise. That decision is also no authority for the issue involved in the present case. 8. The main thrust of argument of learned counsel for respondent No.1 to avoid the bar of res judicata is that finding in S.A.No.560 OF 1997 13 O.S.No.114 of 1991 is based on the inadequacy or inaccuracy of the report and plan submitted by the Advocate Commissioner and the consequent non identification of plaint B schedule. The question of identity was very much in issue in the former suit since that was disputed by the appellants. To decide the disputed issue of title it was necessary to identify the disputed property. Therefore finding regarding the identity of the property is not something which could be divorced from the finding regarding title. In other words, the finding that respondent No.1 has not proved title over the entire plaint B schedule also flowed from the failure to properly identify the disputed property. Every finding necessary for the ultimate decision of the case would operate as res judicata. I must also bear in mind that in the present suit what is put up is plaint B schedule, exactly the same property as referred to in the B schedule in O.S.No.114 of 1991. In that situation, finding in O.S.No.114 of 1991 would and should operate as res judicata against respondent No.1. He cannot contend that in the former suit appropriate evidence regarding identification of the disputed property was not given and hence the rule would not apply. When the decision is for want of evidence also rule of res judicata would apply. Authority for that view comes from Shanthi Vs. Nanu Gopalan (2001(3) ILR Kerala 508). There, former suit was merely for injunction. That case was decided against plaintiff on the basis of difference in extent in the title of plaintiff and title deed of plaintiff's S.A.No.560 OF 1997 14 assignor. Later, suit was brought on title for recovery of possession. It was held that the decree granted in the subsequent suit was in direct conflict with the earlier finding between the same parties by a competent court and hence rule of res judicata would apply (notwithstanding that the subsequent suit was for recovery of possession on the strength of title). It was held, “if the principle underlying the rule of res judicata is that one should not be vexed twice for the same cause and there should be finality of litigation, this case is the best example for application of such a rule.” I would apply the same principle to the facts of this case. It is not disputed, be it for want of proper identification of the disputed property, or, that respondent No.1 was claiming more extent than what was due to him as per Ext.A1, court found in O.S.No.114 of 1991 that respondent No.1 has no title over the entire B schedule and hence he is not entitled to the recovery of possession prayed for. That decision has become final and therefore, should bind the parties. Now the effect of the decree granted by the first appellate court is that contrary to the earlier judgment and decree which has become final, it is found that respondent No.1 has title over the very same property. The very object of incorporating the rule of res judicata in section 11 of the Code is to avoid multiplicity of suits and conflicting decisions. It is interesting to note that what learned Munsiff found in O.S.No.114 of 1991 is that “plaintiff has got title and possession only over some S.A.No.560 OF 1997 15 portions of plaint B schedule property”. Admittedly recovery was sought for of entire B schedule in the former suit meaning thereby that respondent No.1 admitted that appellants were in possession of entire B schedule. So, when in the former suit it was held that “plaintiff has got title and possession only over some portion of plaint B schedule and liberty was given to respondent to file proper suit for recovery of what he actually got under Ext.A1 it could be said that even the observation that respondent No.1 has got title over some portion is concerning property in his possession which does not take in any portion plaint B schedule which admittedly was in the possession of appellants. It is a different matter that if aggrieved by the judgment and decree in O.S.No.114 of 1991, respondent No.1 could challenge the same in appeal. Respondent No.1 is bound by the decision in the former suit. 9. The next question is whether liberty given by the learned Munsiff in O.S.No.114 of 1991 to respondent No.1 to bring a proper suit excluded bar of res judicata. I