IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 SA.No. 797 of 1999(C) --------------------- AS.147/1996 of SUB COURT, NEDUMANGAD OS.472/1983 of MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/APPELLANT/1st DEFENDANT: ------------------------------ 1. LEKSHMI SAROJINI NETTUVANKOTTAKKAL PUTHEN VEEDU MYLAM, KONNIYOOR MURI, PERUMKULAM VILLAGE (Died) *2. S SAKUNTHALA, AGED 63 KUNNUPURATHU PUTHUVEL PUTHEN VEEDU CHENKOTTUKONAM CHEMPAZHANTHY PO *3. G SIVANANDAN, THAMARABHAGATHU KUNNUPURATHU VEEDU PANGAPPARA *4. S SANTHAKUMARI, VETTIKONAM KARAKULAM P O THIRUVANANTHAPURAM *5. S SIVAMANY, THAMARABHAGATHU KUNNUPURATHU VEEDU PANGAPPARA *6. G CHANDRAN, CHERUVATTIKONATHU HOUSE ANANDESWARAM, CHEMPAZHANTHI *7. G MANIKANDAN, ARUN NIVAS KAKODE PALLIVILA POOVATHUR P O ERANCHIYAM, NEDUMANGAD *8. S SREEDEVI, THAMARABHAGATHU KUNNUPURATHU VEEDU PANGAPPARA P O *9. G JAYAKUMAR THAMARABHAGATHU KUNNUPURATHU VEEDU PANGAPPARA (SUPPLEMENTAL APPELLANTS 2 TO 9 ARE IMPLEADED AS THE LRS OF DECEASED SOLE APPELLANT AS PER ORDER Dt 04-04-2006 ON IA.830/06.) BY ADV. SRI.M.BALAGOVINDAN SRI.VINOD J.DEV RESPONDENT/RESPONDENT/PLAINTIFF: --------------------------------------- RAMAN SADASIVAN NETTERANKAL PURAYIDOM KONNIYOOR MURI, PERUMKULAM VILLAGE ADV. SRI.K.B.PRADEEP THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- S.A.No.797 of 1999 --------------------------------------- Dated this 27th day of October 2009 JUDGMENT Appellant and respondent, direct sister and brother are in litigation right from 1974 onwards. it started as a challenge on the part of appellant to the assignment of registry and issue of patta in favour of respondent and later it culminated in the parties filing cross suits seeking reliefs as they thought fit. Appellant filed O.S.No.160 of 1976 claiming that she has got title and possession of 30 cents along with puramboke land (which according to her is about 40 cents in extent) and building thereon and seeking injunction against respondent. Respondent filed O.S.No.94 of 1977 against the appellant for declaration of title and possession he claimed over plaint A schedule, 72 cents in R.S.2048/2 and for recovery and possession of plaint B schedule, a structure situated therein. The suits were tried together. Trial court found that though appellant is residing in the building (B schedule) which she claimed is situated in the puramboke land, she has no title or possession of the 40 cents which she described as puramboke land. She was found to be in possession of the 30 cents in respect of which trial court granted a decree for prohibitory injunction against the respondent. So far as O.S.No.94 of 1977 is concerned, trial court found that respondent had transferred his right, title, interest and possession of the suit property stated S.A.No.797 of 1999 2 therein including the building to his brother, Bhaskaran prior to the institution of that suit and hence, he has no cause of action against the appellant to sue for declaration of title and possession or for recovery of possession. Consequently, O.S.No.94 of 1977 was dismissed. Respondent, it appears was satisfied with the finding entered by trial court in respect of the subject matter of the suit in O.S.No.94 of 1977 but not, the appellant. She preferred A.S.No.216 of 1980 in the District court, Trivandrum challenging that part of the judgment and decree in O.S.No.160 of 1976 which went against her. Learned District Judge (Ext.A10 is the copy of the judgment) confirmed finding of the trial court as to title and possession claimed by appellant over the 40 cents which she described as puramboke land but, taking note of the fact that she is in actual possession of the building situated thereon, modified judgment and decree of trial court to the extent that her possession of the building was to be protected against forceable eviction until she is evicted in due course of law. Those litigations ended there. While so, respondent got Ext.A1, sale deed executed by his brother, Bhaskaran in his favour transferring whatever right Bhaskaran had in the suit property and on the strength of the title he claimed to have acquired as per Ext.A1 filed the present suit for declaration of his title over A schedule and eviction of appellant from the B schedule building. Appellant resisted the suit contending that respondent has no right, title, interest or possession of the A and B S.A.No.797 of 1999 3 schedule properties and that she has got title and possession of the same. It is also contended that Bhaskaran had no right to be conveyed in favour of respondent as per Ext.A1 which according to her is not valid and is only a sham document. She claimed that at any rate title of respondent No.1 over the suit properties is lost by adverse possession and the law of limitation her having been in possession of the suit properties right from 1964 onwards. Trial court answered the issues in favour of the respondent and granted decree as prayed for. First appellate court has confirmed the findings and the judgment and decree. Hence the second appeal. The following substantial question of law are framed for a decision. (I) Whether judgment and decree in O.S.No.94 of 1977 operated as res judicata against the present claim of respondent? (ii) Whether the finding of the courts below that respondent has title over the suit property is correct? 2. It is contended by learned counsel for appellant that it was found in O.S.No.94 of 1977 that respondent has no title or possession of suit properties, nor any cause of action to seek eviction of appellant and that finding would operate as res judicata against the respondent. Further contention is that a reading of Ext.A1 would show that the document is sham which was not intended to take effect. Learned counsel also argued that at any rate the prayer for recovery of possession of the plaint B schedule on the strength of title on the S.A.No.797 of 1999 4 alleged cause of action of trespass by appellant on 24-10-1974 having been found against respondent, present suit for eviction from plaint B schedule is barred under Order 2 Rule 2 of the Code of Civil Procedure (for short, “the Code”). Lastly it is argued that the title if any of the respondent is lost by adverse possession and the law of limitation. According to the learned counsel for respondent, plea of bar of suit under Order 2 Rule 2 of the Code does not arise on facts or pleadings and so far as other substantial question of law framed are concerned, it is argued that no such substantial question of law really arise on the facts and evidence on record. 3. So far as plea of res judicata is concerned, Ext.B2 and Ext.A10 are pressed into service. It is not disputed that respondent filed O.S.No.94 of 1977 seeking declaration of title and recovery of possession and the subject matter of that suit and the present suit are the same. It is seen from Ext.B2, copy of the common judgment in O.S.No.160 of 1976 and O.S.No.94 of 1977 that the dismissal of O.S.No.94 of 1977 was for the reason that respondent had no title or possession over the suit property in that evidence revealed that even before the institution of O.S.No.94 of 1977, he had conveyed the same in favour of his brother, Bhaskaran. It is in that context that learned Munsiff held that respondent has no title or possession of the suit property. The present suit is on the strength of Ext.A1, assignment deed taken by the respondent from his brother, Bhaskaran to whom S.A.No.797 of 1999 5 title and possession was conveyed before instituting O.S.No.94 of 1977. In view of that, contention that finding in O.S.No.94 of 1977 regarding title and possession operated as res judicata cannot be accepted since Ext.A1 was not under consideration in O.S.No.94 of 1977 and the finding therein was not based on Ext.A1. Even if O.S.No.94 of 1977 has been dismissed, law does not prohibit respondent from claiming the same relief based on the subsequent assignment he claimed to have obtained as per Ext.A1. Hence the question of res judicata does not arise. 4. According to the learned counsel for appellant, cause of action pleaded in O.S.No.94 of 1977, i.e, trespass by appellant into the B schedule building on 24-10-1974 is the same pleaded in the present suit also and hence the finding in O.S.No.94 of 1977 that respondent has no cause of action would operate as res judicata in the present suit. Learned counsel argues that in O.S.No.94 of 1977 it was specifically found that respondent failed to prove the alleged cause of action on 24-10-1974 which should operate as res judicata in the present suit. 5. This contention is equally unsustainable reason being that finding of the court in O.S.No.94 of 1977 that respondent failed to prove cause of action pleaded in that suit is based on or, consequent to the finding that he had no title or possession of the property since he had transferred the same to his brother, Bhaskaran. 'Cause of action' S.A.No.797 of 1999 6 means the bundle of materials which give a party the right of action. In other words, fact of trespass by the appellant into the B schedule building on 24-10-1974 would not give cause of action for the respondent to seek eviction unless, he had title over the said building. It is in the absence of relevant materials (title) which gave a right of action for respondent that in O.S.No.94 of 1977 it was found that he has no cause of action to seek eviction of appellant from plaint B schedule. Now, it is on the strength of Ext.A1 that respondent seeks eviction. Continuance of appellant in plaint B schedule building against the wishes of respondent if he were the title holder as per Ext.A1 gives him a cause of action. Therefore, contention that cause of action pleaded by the respondent is barred by res judicata cannot be accepted. 6. So far as title claimed by respondent is concerned, learned counsel for appellant has invited my attention to the recitals in Ext.A1, assignment deed dated 23-02-1983. In Ext.A1 it is stated that in respect of the suit properties a document of title was created by the respondent in favour of his elder brother, Bhaskaran but, that transfer had not taken effect and there was no passing of consideration in favour of respondent who continued to be the person in enjoyment and possession of the property and whatever nominal right Bhaskaran had in the suit property on the strength of the assignment deed in his name is conveyed to the respondent for a consideration of Rs.1000/-. Courts S.A.No.797 of 1999 7 below observed that in spite of respondent seeking declaration of title in O.S.No.94 of 1977, recital in Ext.A1 that Bhaskaran was only a name lender did not appear to be very appreciable. But, courts below also observed that even if it be so, whatever nominal right Bhaskaran had in the suit properties has been conveyed to the respondent as per Ext.A1 and the respondent became absolute owner in possession of the property. According to the respondent, he got assignment of 72 cents mentioned in the plaint A schedule from the government in LA proceedings No.322 of 1968 and constructed a small building (B schedule) thereon. Ext.A2 is the purchase certificate issued to him on 23-10-1974. Ext.A3 is the proceedings of the Assistant Collector, Trivandrum. Appellant filed the appeal against the assignment of land in favour of respondent. The Assistant Collector dismissed that appeal as per Ext.A3. Appellant preferred a revision to the Board of Revenue which was dismissed as per Ext.A4, order dated 17-02-1978. Tahasildar concerned issued notice to the respondent, Ext.A5 dated 15-06-1968 and demand notices, Exts.A6 and A7 dated 14-12-1970 and 04-02-1974. Exts.A8 and A9 series are produced by the respondent to prove payment of revenue for the suit properties. On the other hand, appellant has produced Ext.B1, copy of settlement deed dated 15-10-1966 but it is not disputed by learned counsel for appellant also that it related to the 30 cents which it is not disputed by the respondent belonged to the appellant and found in her favour in S.A.No.797 of 1999 8 O.S.No.160 of 1976. Ext.B4, ration card is produced by the appellant to show her residence in the plaint B schedule building but is only for the period from 1981 onwards. It is in the above circumstances that courts below found title of plaint A and B schedule properties in favour of respondent on the strength of Ext.A1 and other documents which I have discussed above. That appellant had no title or possession of the 40 cents which according to her formed part of the land assigned to respondent in Ext.A2 is concluded by Exts.B2 and A10. Courts below found that appellant has no title or possession over the 40 cents she claimed, she has. I find no reason to interfere with the finding that respondent has title over the A and B schedule items. 7. So far as plea of adverse possession is concerned, there is no evidence to show that at any time before 24-10-1974 the date on which according to respondent, appellant trespassed into the B schedule building she has been in possession of the same. None of the documents produced by the appellant refer to her possession of the plaint B schedule building prior to 24-10-1974 and the suit having been filed in the year 1983 the required period to prescribe title by adverse possession has been not be completed. Moreover when appellant was examined as PW1 she claimed that she has constructed the building in the property belonging to her elder brother which amounts to acceptance of the title of the respondent. 8. So far as argument based on Order 2 Rule 2 of the Code is S.A.No.797 of 1999 9 concerned, that provision says that in case a party was able to seek larger reliefs based on the same cause of action but omitted to do so, he shall be precluded from filing a fresh suit in respect of the relief which he could have urged in the earlier suit. In this case, no such factual situation arises and I stated that dismissal of O.S.No.94 of 1977 was for the reason of respondent having no title over the suit property and the present suit is based on Ext.A1, assignment deed he has taken subsequent to the dismissal of O.S.No.94 of 1977. The substantial questions of law framed above are answered accordingly. Resultantly the second appeal fails. It is dismissed. No cost. THOMAS P JOSEPH, JUDGE Sbna/