IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 RSA.No. 1008 of 2007() ---------------------- RFA.151/2003 of I ADDL. DISTRICT COURT, KOLLAM OS.72/1997 of SUB COURT,KOTTARAKKARA .................... APPELLANT/APPELLANT:DEFENDANT: --------------------------------------------------------- LAKSHMI, AGED 56 YEARS, D/O.ADHICHA, THUVATTARA, THEKKEKKARA VEEDU, EROOR VILLAGE, PATHANAPURAM TALUK. BY ADVS. SRI.G.SHRIKUMAR, SRI.SREEJITH S.NAIR. RESPONDENT(S): RESPONDENTS:PLAINTIFFS: ---------------------------------------------------------------------- 1. CHEMBAKAKUTTY, AGED 56 YEARS, W/O.GOPALAN, SANKARAMANGALATHU VEEDU, MEEYANNOOR MURI, PALLIMON VILLAGE, KOLLAM TALUK. 2. PRASANNAN, AGED 38 YEARS, S/O.GOPALAN, RESIDING AT DO. DO. R1 & R2 ADVS. SRI.V.VENUGOPALAN NAIR, SRI.N.M.VARGHESE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14/07/2010, THE COURT ON 30/07/2010 DELIVERED THE FOLLOWING: Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1008 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of July, 2010. JUDGMENT The defendant in O.S. 72 of 1997, which was a suit for partition is the appellant. She suffered a preliminary decree, which was confirmed in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiffs, the plaint schedule property having an extent of 2 acres of land comprised in Sy. No.576/IP/126 of Yeroor Village belonged to the first plaintiff's husband's father Chadayan Ayyappan, who obtained it as tenant. He was in absolute possession and enjoyment of the property. According to the plaintiffs, Chadayan Ayyappan had married Theni as per the religious rites and in the wedlock first plaintiff's husband Gopalan was born. As their relationship became strained they resided R.S.A.1008/2007. 2 separately. Chadayan Ayyappan later lived with Adicha and in the relationship Lakshmi, the defendant was born. Since there was no marriage between Adicha and Chadayan Ayyappan, Lakshmi has no legal status. Therefore, she is not entitled to any property left by Chadayan Ayyappan. It is claimed that Gopalan was living with Chadayan Ayyappan and the plaint schedule property was looked after by Gopalan. After the death of Chadayan Ayyappan, according to the plaintiffs, the property was being looked after by Gopalan and defendant Lakshmi. Since the relationship between them were cordial Chadayan Ayyappan had asked Gopalan to give one half of the property to Lakshmi and her mother Adicha. Even though Lakshmi and her mother had no rights over the suit property, in view of the desire and wish expressed by Chadayan Ayyappan, the plaintiffs are willing to give half share to Lakshmi and Adicha. Gopalan died on 23.1.1995 and thereafter the relationship became strained. The plaintiff did not want to continue the joint ownership and thus the suit for partition R.S.A.1008/2007. 3 was instituted. 3. The suit was resisted by the defendant. It is pointed out that the suit was barred by the principle of res judicata. The relationship set up in the plaint was specifically denied. According to the defendant, Gopalan had nothing to do with Chadayan Ayyappan nor is Gopalan the son of Chadayan Ayyappan. There was a series of cases in respect of the suit property, in which it was found that Gopalan, the husband of the first plaintiff had no manner of right over the suit property as he was not related to Chadayan Ayyappan. Gopalan was never in possession of the property as claimed in the plaint and it was in the possession and enjoyment of the defendant and her mother. Even assuming that Gopalan and the plaintiffs had any manner of right over the suit property, the same has been lost by adverse possession and limitation. In the year 1974, the defendant put up a new house and she has been treating the property as her own and nobody else has any right over the same. On the basis of these contentions, she prayed for a dismissal of the suit. R.S.A.1008/2007. 4 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 5 and the documents marked as Exts.A1 to A25. The defendant had D.W.1 examined and Exts.B1 to B17(a) marked. On an evaluation of the evidence, the trial court found that the marriage between Theni and Chadayan Ayyappan was established and therefore the claim of the plaintiffs is sustainable. Since the defendant was also the daughter of Chadayan Ayyappan, she is entitled to half share over the property. Accordingly, a preliminary decree was passed. 5. The defendant carried the matter in appeal as R.F.A. 151 of 2003 before the District Court, Kollam. The District Court not only confirmed the preliminary decree, but also declared Lakshmi as the illegitimate child of Chadayan Ayyappan. Aggrieved by the judgments and decrees of the courts below, the defendant has come up in appeal. 6. At the time of admission of this appeal, this court formulated the following questions of law: R.S.A.1008/2007. 5 “1) When Gopalan and his mother Theni, under whom respondents claim right in the property, who were defendants 1 and 2 in O.S. 94/1966, a suit for declaration and recovery of possession of the plaint schedule property and they did not contest the suit and court found that the appellant and her mother who were defendants 3 and 4 alone are the legal heirs of deceased Chadayan Ayyappan. Whether the courts below were justified in holding that the mother of Gopalan is the legally wedded wife of Chadayan Ayyappan, on the evidence of P.Ws. 2 and 3 who were not born at the time of the alleged marriage. 2) When Gopalan and his mother did not contest O.S. 194/1966 the appellant and her mother continued their exclusive possession asserting their independent rights, whether rights, if any of the respondents, is lost by ouster and adverse possession.” 7. Learned counsel for the appellant pointed out that it is quite unfortunate that the courts below have missed the real issue involved in the case and has gone on R.S.A.1008/2007. 6 to decide the case on conjunctures and surmises. The question as to whether Gopalan was the son of Chadayan Ayyappan was no longer open to discussion in view of the decision in O.S. 194 of 1966 before the Munsiff's court, Punalur, which was confirmed in appeal and Second Appeal. In that decision, it was conclusively determined that Gopalan and his wife had no relationship with Chadayan Ayyappan and that has become conclusive. The reasons given for not applying the principle of res judicate by the court below are not sustainable in law. Again, learned counsel pointed out that even assuming that the principle of res judicata may not apply, still the court ought to have seen that the claim of the plaintiffs is barred by adverse possession and limitation. At any rate, as early as in 1966 in O.S. 194 of 1966 the defendant had specifically disputed the rights of Gopalan and his wife, who were co-defendants. In the said suit it had stated that Adicha and the defendant herein alone were in exclusive possession and enjoyment of the property. That was a suit instituted by a stranger against the R.S.A.1008/2007. 7 defendant, her mother, Gopalan and his wife. Atleast from 1966 onwards, there has been an open assertion by the defendant about her exclusive right over the property, and that could not have been omitted to be noticed by the court below. The courts below were therefore not justified in not accepting that plea also. Learned counsel also pointed out that it is rather strange that the courts below have accepted that the legally wedded wife of Chadayan Ayyappan is Theni. According to learned counsel, there was no justification in declining to uphold the defence set up by the defendant in the suit. 8. Learned counsel appearing for the contesting respondents on the other hand submitted that the courts below were perfectly justified in accepting the case put forward by the plaintiffs. There was clinching evidence to show that Theni was the wife of Chadayan Ayyappan and not Adicha. Learned counsel pointed out that may be that the defendant was born in the relationship between Chadayan Ayyappan and Adicha. But Adicha could not be treated as R.S.A.1008/2007. 8 the legally wedded wife of Chadayan Ayyappan. As far as the decision in O.S. 194 of 1966 is concerned, in the said suit Gopalan and his wife were only the defendants and any decision in that suit therefore cannot bind them because there was no inter se conflict between the defendants in the suit, which was necessary to be decided for giving relief to the plaintiffs. Further, Gopalan and his wife remained ex party and therefore by no stretch of imagination it cannot be said that the decision in O.S. 194 of 1966 could bind them. Equally unsustainable, according to learned counsel, is the contention based on adverse possession and limitation. According to learned counsel, the parties being co-owners, unless it is clearly shown that the plaintiffs had been ousted from possession and enjoyment of the property, the defendant could not succeed in her plea of adverse possession and limitation. The mere fact that they have neither shared the enjoyment of the property, nor the income from the property, by themselves are not sufficient R.S.A.1008/2007. 9 to constitute ouster. There is no such evidence of ouster in this case and therefore the decree is only to be sustained. 9. If as a matter of fact there is basis for the contention that the present plea of relationship between the plaintiffs with Chadayan Ayyappan is barred by the principle of res judicata or the plea is barred by adverse possession and limitation as set up by the defendants, then the issue as to whether Theni or Adicha was the legally wedded wife of Chadayan Ayyappan may not be of much significance. 10. The definite case put forward by the defendant was that the issue as to whether Gopalan was the son of Chadayan Ayyappan had been gone into in O.S. 194 of 1966 and the decision in that case was that Gopalan and his wife had no relationship with Chadayan Ayyappan. It had become final. That was a suit by a stranger for recovery of possession on the strength of title against Gopalan, his wife, Adicha and the defendant. Therein the defendant in this suit and her mother were defendants 3 and 4. The specific contention taken was that Theni was not the legally R.S.A.1008/2007. 10 wedded wife of Chadayan Ayyan and Gopalan was not his son. An issue was raised in the said suit and it was found in favour of defendants 3 and 4 in the said suit. The fourth defendant in the said suit is none other than the defendant in this suit. In support of her plea that the said decision operates as res judicata, learned counsel appearing for the appellant relied on the following decisions: i) Mariamma v. Charaghan (1959 K.L.T. 1050) ii) Kunjulekshmi Amma v. Velayudhan Nadar (1966 KLT 683) iii) Iftikhar Ahmed v. Syed Meharban Ali (AIR 1974 SC 749) iv) Chandu Lal v. Khallur Rahman (AIR 1950 PC 17) v) M/s. Makhija C & E.Pvt. Ltd. v. Indore Development Authority (AIR 2005 SC 2499). 11. Learned counsel appearing for the respondents on the other hand relied on the decision reported in Sajjadanashin Sayed Md. B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer (CDJ 2000 SC 109), Saroja v. Chinnusamy ((2007) 8 SCC 329) and State of U.P. v. Jagdish Saran Agrawal (CDJ 2008 SC 1972). R.S.A.1008/2007. 11 12. It is well settled that the principle of res judicata can be attracted in the case of co-defendants and co-plaintiffs as the case may be. In order to attract the principle, the following conditions will have to be satisfied: i) there must be a conflict of interest between the co- defendants, ii) that it must be necessary to decide the conflict in order to give reliefs, which the plaintiff claims, iii) that the court had actually decided the question. 13. In the case on hand, the plea of res judicata set up by the defendant is the decision between the parties in O.S. 194 of 1966. The copy of the said judgment is produced and marked a Ext.B1. Both the courts below raised the issue as to whether the suit is barred by res judicata. The trial court observed that in O.S. 194 of 1966 Gopalan and his wife, who were defendants 1 and 2 were not found to be necessary parties to the suit. It was also observed that they had remained ex-parte. So the trial court goes on to observe that the decision was rendered behind the back of Gopalan and therefore the decision is not R.S.A.1008/2007. 12 conclusive and the legal heirship was not decided in Ext.B1 judgment. Therefore, the principle of res judicata cannot be applied. The appellate court on the other hand went on to observe that defendants 1 and 2 in Ext.B1 judgment had remained ex-parte and therefore the court observed that the finding that Theni had no relationship with Chadayan Ayyappan and Gopalan was not their son cannot be binding. Relying on the decision reported in Mahboob Sahab v. Syed Ismail (AIR 1995 SC 1205), the court went on to hold that applying the principles in that case, it could not be said that the decision operates as res judicata. 14. In the decision reported in Mahboob Sahabs case (supra) the four factors necessary to attract the principle of res judicata were emphasized. They are i) There must be a conflict of interest between the defendants concerned, ii) It must be necessary to decide the conflict in order to give the reliefs which the plaintiff claim, iii) The question between the defendants must have been finally R.S.A.1008/2007. 13 decided and iv) The co-defendants were necessary or proper parties in the former suit. 15. Now, one may refer to the decisions relied on by either side. In the decision reported in Chandu Lal's case (supra) it was held as follows: “The conditions for the application of the doctrine of es judiata as between parties who have been co-defendants in a previous suit are : there must be () a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co-defendants. It may be added that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. Burden to prove this lies on the party R.S.A.1008/2007. 14 who alleges that the decision operated as res judicata.” In the decision in Mariamma's case (supra) it was held as follows: “The doctrine of res judicata may apply even though the party against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest. But if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. Burden to prove this lies on the party who alleges that the decision operated as res judicata.” In the decision in Iftikhar Ahmed's case (supra) it was held as follows: “The rule of res judicata while founded on ancient precedent is dictated by a wisdom and the application of the rule should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law. The raison d'etre of the rule is to confer finality on R.S.A.1008/2007. 15 decisions arrived at by competent courts between interested parties after genuine contest. It is now settled that for a judgment to operate as res judicata between or among co-defendants it is necessary to establish that (1) there was a conflict of interest between the co-defendants (2) that it was necessary to decide the conflict in order to give relief which the plaintiff claimed; and (3) that the Court actually decided the question. If thus a previous decision can operate as res judicata between the co-defendants under certain conditions, there is no reason why a previous decision should not operate as res judicata between the co-plaintiffs if the same conditions are mutatis mutandis satisfied.” In the decision in Kunjulekshmi Amma's case (supra) it was held as follows: “For the applicability of the rule of res judicata between co-defendants, there must be a conflict of interest between the co-defendants, the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and a decision of that question between the co-defendants. The R.S.A.1008/2007. 16 doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided.” In the decision reported in M/s. Makhija C & E.Pvt. Ltd.'s case (supra) it was held as follows: “Where there was a conflict of interest between the two co-respondents in appeal against award of tender to highest bidder and for the purpose of deciding the relief, if any, to be granted to appellant it was necessary for the appellate court to decide whether one of the co- respondent i.e. highest bidder was entitled to participate in the tender process and judgment of appellate court though is cryptic shows application of judicial mind to merits of the case, it can be said that all the three pre-requisite conditions to apply principle of res judicata between co-defendants are present and, R.S.A.1008/2007. 17 therefore, judgment of appellate court disposing appellant's appeal would operate as res judicata to bind not only appellant but also co- respondents.” In the decision reported in Saroja's case (supra) it was held as follows: “Let us, therefore, deal with Conditions (iv) fist which says, “the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit.” Learned counsel for the appellant sought to argue that since the former suit was decided ex parte, it could not be said that it was finally heard and decided by the court and, therefore, Condition (iv) was not satisfied and the principle of res judicata could not be applied and accordingly the ex parte decree in the former suit would not operate as res judicata in the subsequent suit. We are unable to agree with this contention of the learned counsel for the appellant. In this case, admittedly, summons was duly served upon Kuppusamy and in spite of such service of summons, Kuppusamy thought it fit not to appear or to contest the suit filed against him. R.S.A.1008/2007. 18 Once an ex parte decree is passed against Kuppusamy, in our view, the same should be taken as a final decision after hearing. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition (iv) was not satisfied and accordingly it cannot be held that the principle of res judicata would not apply in the present case. In the present case, admittedly, the appellant in her plaint had not made any case of fraud or collusion either against Kuppusamy or against the respondents herein. It is true that when the subsequent suit was filed, the ex parte decree in the former suit had not been passed and, admittedly it was passed during the pendency of the subsequent suit. But then it was open to the appellant to file an amendment of the plaint in the subsequent suit by introducing a case of fraud or collusion and by challenging the ex parte decree R.S.A.1008/2007. 19 decree on the ground of fraud also although the ex parte was passed during the pendency of the subsequent suit. This, however, was not done by her. Therefore, in our view, since the appellant could not make out a case of fraud or collusion challenging the transaction by which she had purchased the suit property from Kuppusamy in the manner indicated above or, since, even the ex parte decree was also not challenged on the ground that Kuppusamy and respondent 3 colluded amongst themselves and out of such collusion. Kuppusamy during the pendency of the former suit sold out the suit property to the appellant, it is not open to the court to hold that the said ex parte decree would not operate as res judicata on the ground that the transaction between Kuppusamy and the appellant in respect of the suit property was a fraudulent one.” As far as the decision relied on by the learned counsel for the respondents are concerned, in the decision reported in State of U.P.'s case (supra) the decision had gone on to observe that when a suit is dismissed for default, it cannot be treated as a decision on merits. One can have no doubt R.S.A.1008/2007. 20 about the proposition at all. In the decision in Sajjadanashin Sayed Md. B.E. Edr.(D) by Lrs.'s case (supra) the facts necessary to attract the principle of res judicata are highlighted. Learned counsel relied on the following passages in support of his contention: “Difficulty in this area of law has been felt in various jurisdictions and therefore some tests have been evolved. Halsbury says that while the general principle is clear, “difficulty arises in the application of the rule in determining in each case what was the point decided and what was the matter incidentally cognizable and the opinion of Judges seems to have undergone some fluctuations.” By a proposition collateral or subsidiary only, i.e. not more than part of the reasoning supporting the conclusion.” It is well settled, say the above authors, “that a mere step in reasoning is insufficient. What is required is no less than the determination of law, or fact or both, fundamental to the substantive decision.” ............. ............... In India, Mulla has referred to similar tests. The learned authors says” A matter in R.S.A.1008/2007. 21 respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was 'necessary' to be decided for adjudicating the principal issue and was decided, it would have to be treated as