IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 SA.No. 881 of 1997(E) --------------------------- AS.32/1995 of DISTRICT COURT, KASARAGOD OS.90/1989 of SUB COURT, KASARAGOD .................... APPELLANT(S):(APPELLANT/PLAINTIFF) ----------------------------------------------- * RAGHAVAN, S/O. KRISHNAN, RESIDING AT VIDYANAGAR, KASARAGOD KASBA VILLAGE, P.O. KASARAGOD, KASARAGOD DISTRICT(DIED. LR IMPLEADED ADDL. APPL. 2 TO 6) * ADDL. APPELLANTS 2 TO 6 IMPLEADED 2. JANAKI, W/O. LATE RAGHAVAN, RESIDING AT MUDAKAI HOUSE, BOVIKKANA, P.O.KULIYAR, KASARAGOD TALUK AND DISTRICT. 3. PRAMEELA, D/O. DO. RESIDING IN DO. DO. 4. SYAMALA, D/O. DO. IN DO. DO. 5. SINDU, D/O. DO. RESIDING IN DO. DO. 6. PRASHANTHA, S/O. DO. RESIDING IN DO. DO. * ADDL. APPELLANTS 2 TO 6 ARE IMPLEADED AS THE LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DATED 28/09/2010 IN I.A. NO. 2434/2010. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN SMT.GEETHA P.MENON svs ............2/-... ...2... RESPONDENT(S):(RESPONDENTS/DEFENDANTS 1 TO 4 AND 6 TO 14) --------------------------------------------------------------------------------- 1. SUNDARI, W/O. SRISHNAN. 2. SAVITHRI, S/O. NARAYANAN. 3. NARAYANAN, S/O. GOPALA. 4. MOHANAN, S/O. KRISHNAN. 5. SABIREN,W/O. MUHAMMAD YASIN. 6. FATHIMA, W/O. MAHAMMAD YASIN. 7. MOHAMMAD MAZRAUL HAQ, S/O. MUHAMMAD YASIN. 8. MOHAMMAD ZAHEERUL HAQ, S/O. MUHAMMAD YASIN. 9. MOHAMMAD ANVAR HAQ, S/O. MUHAMMAD YASIN. 10. MOHAMMAD GOOSE, S/O. MUHAMMAD YASIN. 11. ABDUL RAUF, S/O. MUHAMMAD YASIN. 12. JAMALUDDIN,S/O. MUHAMMAD YASIN. 13. MOHAMMAD IFTEKHAR, S/O. MUHAMMAD YASIN. RESPONDENTS 1 TO 4 ARE RESIDING AT KOTEVALAPPU, KUDLU VILLAGE, KASARAGOD TALUK, P.O. KUDLU AND RESPONDENTS 5 TO 13 ARE RESIDING AT 23, HAJI NOOR MOHAMMAD AMEER CROSS LANE, DONTADY STREET, 1ST FLOOR, ROOM NO.7, BOMBAY. R6 TO 8 & 10, 12 ,13 BY ADVS. SRI.V.V.ASOKAN SMT.S.AMINA SRI.C.RAMAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/01/2011, THE COURT 13/01/2011 DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO. 2554/1998 IN S.A. 881/1997 DISMISSED 13/01/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 881 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2011. JUDGMENT The plaintiff in O.S. 90 of 1989, whose suit was dismissed by the trial court and which was confirmed in appeal, is the appellant. During the pendency of this appeal, he passed away and his legal representatives have been brought on the party array as additional appellants 2 to 6. 2. The suit was one for declaration of ¼th share in plaint A schedule property, which had an extent of 1.15 acres and is comprised in Re-survey No.72/1. According to the plaintiff, the plaint schedule property was obtained by the grand father of the plaintiff as per Ext.A1 dated 10.8.1937, which was a registered lease deed. The grand father, namely, Koraga, eversince Ext.A1, was in absolute possession and enjoyment of the property. He had a son by name Krishnan, who S.A.881/1997. 2 predeceased him. The plaintiff is the son of said Krishnan and the first defendant is his widow. Defendants 2 and 4 are the children of said Krishnan and the third defendant is the husband of the second defendant. Consequent on the death of Koraga, according to the plaintiff, the plaint schedule property devolved on plaintiff, first defendant and defendants 2 and 4 and they have been in absolute possession and enjoyment of the property. On the basis of these allegations, the suit was laid for declaration and partition. 3. The suit was mainly contested by the fifth defendant. He denied the case set up by the plaintiff and contended that the suit was a collusive affair between the plaintiff and defendants 1 to 4. According to this defendant, the suit property was obtained on chalageni lease by one Kalliyani from the Kudlu family and thereafter she was in actual possession and enjoyment of the same. She along with the land owner of the property filed J Form in S.M. proceedings No.15 of 1975 and Kalliyani was issued with a S.A.881/1997. 3 purchase certificate, namely, Ext.B3 dated 5.6.1976. Kalliyani thereafter assigned the suit property to the fifth defendant as per Ext.B1 dated 4.10.1980. According to him, defendants 1 to 3 were permitted to reside in the house in the property and when they refused to vacate, he had to institute O.S. 271 of 1981 before the Munsiff's Court, Kasaragod for recovery of possession of the house. That suit was decreed. Appeal filed by defendants 1 to 4 was dismissed and so also the second appeal before this court. Thus defendants 1 to 4 were bound to surrender the building and the property to the fifth defendant. It is in order to get over that decree that the present suit has been filed. According to the fifth defendant, the suit is without any bona fides and is only a delaying tactic adopted by the plaintiff and defendants 1 to 4 to protract the execution proceedings in O.S. 271 of 1981. Accordingly, he prayed that the suit be dismissed. S.A.881/1997. 4 4. It appears that during the pendency of the suit, fifth defendant died and his legal heirs were brought on the party array as additional defendants 6 to 14. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The contesting defendant examined D.W.1 and had Exts.B1 to B19 marked. Exts. C1 and C2 are the commission report and plan. 6. The trial court found the case set up by the fifth defendant to be true and was of the opinion that the judgment and decree in O.S. 271 of 1981 will be binding on the plaintiff also. According to the trial court, the plaintiff in this suit has raised a similar claim as that of defendants 1 to 4 in O.S. 271 of 1981 and both the plaintiff and defendants 1 to 4 were setting up title on the basis of the same document. The suit was accordingly dismissed. The matter was carried in appeal as A.S. 32 of 1995 before the District Court, Kasaragod. The lower appellate court, after an S.A.881/1997. 5 elaborate consideration of the materials before it, concurred with the trial court and dismissed the appeal. Hence this Second Appeal. 7. Notice has been issued on the following substantial questions of law: “1. Is there not a presumption in favour of Ext.A1 document dated 10.8.1937, by virtue of the provisions contained under Section 90 of the Indian Evidence Act and therefore was not the said document and the rights thereunder liable to be upheld. 2. In the absence of any challenge to Ext.A1 either in the pleadings or by any other process known to law, was not Ext.A1 and the rights thereunder liable to be upheld. 3. Is not the impugned decision vitiated by reason of misreading of the evidence and other materials and also by reason of a totally erroneous appreciation of the evidence available in the case. 4. Can the right of a party to an item of property be negatived applying principles of res-judicata, when admittedly he was not a party to the S.A.881/1997. 6 proceedings on the basis of which such a plea is raised. 5. Whether under the facts and circumstances of the case, the plea of the plaintiff is barred by the principles of res-judicata. 6. Is a certificate of purchase or related proceedings to which the plaintiff is not a party, binding on him. 7. Is not the impugned decision vitiated by reason of non compliance with the requirements of Section 125(3) of the Kerala Land Reforms Act. 8. Whether the courts below were right in entering a finding regarding the tenancy claim of deceased Koraga vis-a-vis the claim of Kallyani, without a reference to the Land Tribunal under Section 125(3) of the Kerala Land Reforms Act. 9. Whether the court below has properly appreciated and applied the provisions contained in Article 58 of the Limitation Act. 10. When admittedly the plaintiff is an heir of deceased Koraga to whom the property belonged by virtue of Ext.A1, when does the period of limitation for him to claim partition commence and is not a suit filed within 3 years of the refusal S.A.881/1997. 7 to accede to the claim partition made by the plaintiff, within time. 11. When the plaintiff is admittedly a legal heir of deceased Koraga, is not the suit filed within 3 years of 1.8.1989, viz, the date on which the demand for partition was refused, within time. 12. Whether under the facts and circumstances, the courts below were right in dismissing the suit.” 8. Learned counsel appearing for the appellant pointed out that the courts below were not justified in coming to the conclusion that the judgment and decree in O.S. 271 of 1981 are binding on the plaintiff also. Attention was drawn to the fact that in one portion of the judgment the trial court observed that the property covered by Exts.A1 and B1 are one and the same. In another portion, observation is otherwise. The lower appellate court observed that Ext.A1 relates to a different property. It was pointed out that the lower appellate court had also observed that the property covered by Exts.A1 and B1 is different. This is contrary to the commission report, which has not been set aside. If the property covered by Exts.A1 S.A.881/1997. 8 and B1 are the same, context of the case changes and it has a material bearing on the issue involved in the case. It is therefore contended that the judgments and decrees of the courts below are not in accordance with law. 9. It is seen that both the courts below have taken aid of Section 11 Explanation VI to hold that the plaintiff is bound by the decree in O.S.271 of 1981. The said provision reads as follows: “11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation VI. Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the S.A.881/1997. 9 purposes of this section, be deemed to claim under the persons so litigating.” 10. A reading of the above provision shows that the essential condition necessary to attract the above provision is that the interest of the person concerned had really been represented by others in another suit. It must be shown that the interest of the person concerned was looked after in a bona fide manner. If there is any conflict of interest between the person concerned and those who were parties in the earlier litigation, then the section has no application. So is the case when it is proved that there was collusion or fraud in the earlier litigation. Same is the position if it is shown that there has been negligence in the earlier litigation or that there was mala fides on the part of the person who had set up title, which was common to the person concerned also. 11. It cannot be disputed that the properties involved in O.S.271 of 1981 and the present suit are one and the same. It may not be true to say that the property S.A.881/1997. 10 covered by Exts.A1 and B1 are not same. The commissioner has categorically stated that the properties are identical and as rightly pointed out by the learned counsel for the appellants, commission report has not been set aside. 12. True, the plaintiff herein was not a party to O.S.271 of 1981. In O.S.271 of 1981, defendants 1 to 4 in this suit has set up title on the basis of same document as is now done by the plaintiff and had contested the suit. It was found that the plaintiff's case in O.S. 271 of 1981 was true and a decree was granted in his favour. It was confirmed in appeal also. That decree has become final. It is not in dispute that the title set up by the plaintiff in the present suit is identical to the title set up by defendants 1 to 4 in O.S.271 of 1981. Even though the plaintiff tried to take the stand that he was not aware of O.S.271 of 1981, both the courts below have found that the evidence is clear to the effect that he was fully aware of the proceedings and he stood by and watched the same. There is nothing to show that there was any fraud played by defendants 1 to 4 in the S.A.881/1997. 11 earlier suit or there was any lack of bona fide contest in the earlier suit. There is nothing to show that there was no fair and just trial in O.S.271 of 1981. Ext.B19, which is the copy of the deposition of the plaintiff in this suit in S.M.15 of 1975 would clearly reveal that he was aware of the pendency of O.S.271 of 1981 instituted by the fifth defendant herein against defendants 1 to 4. It is also interesting to note that the S.M. proceedings, in which purchase certificate was issued to Kalliyani, was unsuccessfully challenged by defendants 1 to 4. 13. It is true that the fifth defendant, who instituted O.S. 271 of 1981 had not made the plaintiff herein a party to the suit. But one has to appreciate the cause of action in the suit. The case of the plaintiff in O.S.271 of 1981 was that he had permitted defendants 1 to 4 to reside in the house and when they refused to vacate the same he had instituted the suit. Defendants 1 to 4 then set up common title in the suit property, which is similar to the title set up in the present suit and tried to establish the same. It S.A.881/1997. 12 could not therefore be said that the omission to array the plaintiff herein as a defendant in O.S.271 of 1981 was deliberate and with ulterior motive. A perusal of the proceedings in O.S.271 of 1981 would clearly show that the contest was severe and defendants 1 to 4 in the said suit had very effectively contested the suit. A reading of Exts. B13 to B15 will leave one in no doubt in that regard. 14. There is nothing to show that there is any conflict of interest between defendants 1 to 4 and the plaintiff herein. In fact the evidence is to the contrary. There is nothing to show that O.S. 271 of 1981 was a collusive suit in order to defeat the rights of the plaintiff in the present suit. The courts below have referred to several decisions on this aspect and it is unnecessary to repeat them. 15. It is trite that there may be circumstances when a person may be bound by the decree in a suit even though he may not be eo nominee a party to the same. One such situation is covered by Section 11 Explanation 6. In S.A.881/1997. 13 such a case, the earlier decision operates as res judicata in a subsequent suit. Of course, the earlier suit must be a bona fide one and must have been tried fairly and justly. 16. At any rate, even assuming that the decision in O.S.271 of 1981 may not act as res judicata as such, still it will have considerable impact on the present suit. 17. One cannot omit to note that Kallyani, the predecessor in interest of the fifth defendant had obtained purchase certificate in respect of the property. As already noticed, the authority under the Land Reforms Act had come to the conclusion that defendants 1, 2 and 4 had no manner of right over the suit property. That was also the finding in O.S. 271 of 1981. 18. On a re-evaluation of the evidence, it can be easily seen that the attempt of the plaintiff in the present suit is only to protract and delay the execution proceedings in O.S. 271 of 1981 as rightly pointed out by the fifth respondent in the suit. Defendants 1 to 4, who had set up identical title as that of the plaintiff in the present suit in S.A.881/1997. 14 O.S.271 of 1981 and had failed to establish the same. The plaintiff, who sets up an identical claim has necessarily to be bound by the decision in O.S. 271 of 1981. Both the courts below were perfectly justified in holding against the plaintiff. No question of law, much less any substantial question of law arises for consideration in this appeal. This appeal is without merits and it is accordingly dismissed. Parties will suffer their respective costs before this court. P. BHAVADASAN, JUDGE sb.