IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 OP(C).No. 3480 of 2011(O) ------------------------- OS.247/2010 of PRINCIPAL MUNSIFF COURT,KANNUR .................... PETITIONERS: ----------------------- 1. CHALADAN KARTHIANI, AGED 76 YEARS, D/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006. 2. CHALADAN RAVEENDRAN, AGED 69 YEARS, S/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006. 3. CHALADAN RAMACHANDRAN, AGED 65 YEARS, S/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006. 4. CHALADAN GEETHA, AGED 59 YEARS, D/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006. 5. CHALADAN RAMESHAN, AGED 54 YEARS, S/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006. BY ADVS. SRI.N.M.MADHU, SMT.C.S.RAJANI. Kss ..2/- ..2.... OPC.NO.3480/2011 O RESPONDENT(S): ---------------------------- 1. MUMEMBATH MALAYAYIL RADHAKRISHNAN, AGED 56 YEARS, S/O.KUNHIKANNAN, SMER NIVAS, CHEMBILODE AMSOM, CHALA KIZHAKKEKARA DESOM, KANNUR DISTRICT-670 001. 2. CHALADAN NALINI, AGED 74 YEARS, D/O.KRISHNAN, CHALADAN HOUSE, ELAYAVOOR AMSOM, EDACHOVVA DESOM, P.O.CHOVVA, KANNUR-670 006. 3. N.C.PRIYA, AGED 37 YEARS, W/O.SURESH, PRIYA NIVAS, EDACHOVVA, P.O.CHOVVA, KANNUR DISTRICT-670 006. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3480/2011 O APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN AS.1 OF 2004 OF THE ADDL.SUB COURT, THALASSERY. EXHIBIT P2: TRUE COPY OF THE COMMISSION REPORT DATED 9/11/2000 AND PLAN. EXHIBIT P3: TRUE COPY OF THE JUDGMENT IN RSA NO.1235/2008. EXHIBIT P4: TRUE COPY OF THE PLAINT IN OS.247/2010 BEFORE THE MUNSIFF'S COURT, KANNUR. EXHIBIT P5: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER. EXHIBIT P6: TRUE COPY OF THE JUDGMENT DATED 10/8/11 IN OS.247/2010. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No. 3480 of 2011 --------------------------------------- Dated this 28th day of October, 2011 JUDGMENT Petitioners are defendants 1 and 3 to 6 in O.S.No.247 of 2010 of the Court of learned Munsiff, Kannur. They obtained a decree for prohibitory injunction against respondents 1 to 3 in O.S.No.623 of 2000 of the same Court concerning a pathway which according to them has a width of 4feet and which first respondent claimed in O.S.No.247 of 2010 as having width of 7feet vide which petitioners are said to have reduced to 4 feet. Petitioners filed written statement in O.S.No.247 of 2010 raising a contention that the suit is barred by res judicata in view of the judgment and decree in O.S.No.623 of 2000. That question was heard as a preliminary issue and found against petitioners by Ext.P6, finding. Ext.P6 is under challenge. 2. It is contended by the learned counsel that cause of action pleaded in O.S.No.247 of 2010 as revealed from paragraph 7 of Ext.P4, plaint is that petitioners had attempted to encroach into the plaint B schedule property on 20.10.2000 and on 05.10.2009 the case (O.S.No.623 of 2000 was finally disposed of. On 01.04.2010) 7th defendant trying to reduce the width of the O.P(C).No.3480 of 2011 -: 2 :- pathway in her property. According to the learned counsel, in O.S.No.623 of 2000 it has been specifically found that width of the pathway is only 4 feet and the contention of defendants in that suit that petitioners had reduced the width of the pathway cannot be accepted. Learned counsel has given me a copy of written statement in O.S.No.623 of 2000. 3. To attract the principle of res judicata under Sec.11 of the Code of Civil Procedure the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the 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 substantially raised, and has been heard and finally heard and decided by such court. 4. In O.S.No.623 of 2000, the prayer was for a decree for prohibitory injunction to restrain the defendants in that suit and men under them from trespassing into the plaint schedule properties therein and committing waste therein and widening the lane (which as found in that suit had a width of 4 feet) situated on the eastern side of plaint schedule item No.1 or encroaching into or taking a portion of the land from the eastern side of the plaint schedule item No.1. O.P(C).No.3480 of 2011 -: 3 :- 5. The prayer in O.S.No.247 of 2010 is for a declaration that plaint B schedule property therein (the property described in partition deed No.1085 of 2007 bounded by lane on the east, property of defendants 1 to 6 in that suit on the west, property of defendant No.7 and a pathway on the north and pathway on the south) is the vacant portion kept unpartitioned in partition deed No.1085 of 2007 of S.R.O, Kannur and the pathway to the property of defendant No.7 and plaint A schedule and defendants 1 to 6 have no exclusive right or possession over the plaint B schedule property beyond their right to enjoy it as a pathway to their property. 6. No doubt in paragraph 3 of Ext.P4, plaint in O.S.No.247 of 2010, there is a statement that defendants 1 to 6 in the said suit have reduced width of the pathway to 4 feet by encroaching into the 3 feet pathway which was earlier kept vacant in the partition deed and regarding which according to the petitioners, there is already a finding in O.S.No.247 of 2010. 7. But, to attract the principle of res judicata the issue directly and substantially involved in the former suit and decided must be substantially and directly involved in the subsequent suit also. In the subsequent suit the prayer is with reference to the plaint B schedule property referred to above allegedly kept vacant and unpartitioned in the partition deed No. 1085 of 2007. O.P(C).No.3480 of 2011 -: 4 :- That was not the issue involved in O.S.No.623 of 2000. If that be so, it cannot be said that the decision in the earlier suit would operate as res judicata in O.S.No.247 of 2010. So far as the contention regarding width of pathway in dispute raised in O.S.No.247 of 2010 is concerned, may be it is open to the petitioners to defend the claim of the first respondent in the latter suit by recourse to the judgment and decree in the former suit. That does not mean that the subsequent suit is barred by res judicata. In that view of the matter I do not find reason to interfere with the finding on the issue regarding res judicata. This original petition is dismissed. (THOMAS P. JOSEPH, JUDGE) Sbna/-