IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 SA.NO. 854 OF 1992(B) --------------------- AS.159/1987 OF SUB COURT, HOSDURG OS.181/1985 OF MUNSIFF COURT, HOSDURG .................... APPELLANT(S)/APPELLANTS/PLAINTIFFS: -------------- (*)1. AMMANI (DIED. LRS IMPLEADED) 2. B.UMANANDA NAIK NO.1 IS THE WIDOW OF LATE B.RAKAKRISHNA. NO.2 IS THE SON OF NO.1. BOTH ARE RESIDING IN HOSDURG VILLAGE OF HOSDURG TALUK, P.O.KANHANGA. ADDL. APPELLANTS: (*)3. LALITHA, D/O.LATE B.VASUDEVAN, BELEGADDE HOUSE, KEEKAN P.O., KASARAGOD DISTRICT (DIED) (*)4. KAMALA, /O.LATE RAMANATH, PAREKKADAVU HOUSE, CHITTANI P.O., KASARAGOD DISTRICT (DIED) 5. H.HARICHANDRA, S/O.LATE AMMANI, NEAR CHURCH, HOSDURG, KANHANGAD 671315. (**)6. B.HARISCHANDRAN, S/O.LATE LALITHA, BELIGEDDE HOUSE, KEKAN P.O., KASARAGOD DISTRICT (DIED) 7. AHALYA, D/O.LATE LALITHA, BELIGEDDE HOUSE, -DO- 8. SUGANDA, D/O.-DO- -DO- 9. GOURI BAI, D/O.-DO- -DO- 10. SREENIVASA, S/O.LATE KAMALA, RESIDING AT PARAKADAVU HOUSE, CHITTARI P.O., KASARAGO DISTRICT. 11. GUNASAGARI, D/O.LATE KAMALA RESIDING AT -O- 12. GANGADHARA, S/O.LATE KAMALA, -DO- -DO- 13. MOHANDASA, S/O.-DO- -DO- SA NO.854/1992 2 14. LOKNATH, S/O.-DO- -DO- 15. MANJULA, D/O.-DO- -DO- (*)ADDL.APPELLANTS 6 TO 9 ARE THE LRS OF DECEASED ADDL.APPELLANT NO.3 AND ADDL.APPELLANTS 10 TO 15 ARE THE LRS OF DECEASED ADDL. APPELLANT NO.4. LRS OF THE DECEASED FIRST APPELLANT ARE I MPLEADED AS ADDL.APPELLANTS 3 TO 15 AS PER ORDER DATED 3.10.2002 ON CMP NO.2036/1996. (**) IT IS RECORDED THAT ADDL.6TH APPELLANT IS DEAD AND NO PERSONS NEED BE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED ADDL.SIXTH APPELLANT AS PER ORDER DATED 16.6.2003 ON MEMO DATED 22.5.2003 (CF.2112/03). BY ADV. SRI.GOVIND K.BHARATHAN, SENIOR ADVOCATE SRI.N.MADHAVAN SRI.A.K.MADHAVAN UNNI SRI.K.SHRIHARI RAO SMT.M.HEMALATHA RESPONDENT(S)/RESPONDENTS/EFENDANTS:: --------------- 1. NANI, W/O.KORAN 2. SHYAMALA, W/O.A.KRISHNAN 3. K.KUNHIKRISHNAN NO.1 IS THE DAUGHTER OF CHANDUTTI & WIFE OF KAKKAVAYIL KORAN. NO.2 IS THE DAUGHTER OF NARAYANAN AND WIFE OF A.KRISHNAN. NO.3 IS THE SON OF CHANDRAN. NOS.1 AND 2 ARE RESIDING AT CHEMMATTUMVAYAL IN BALLA VILLAGE OF HOSDURG TALUK, P.O.KANHANGAD. NO.3 IS RESIDING AT MOUVANI, WEST ELERI VILLAGE OF HOSDURG TALUK, P.O.KATTAMALE ESTATE (VIA) NILSWAR. ADVOCATE SHRI L. GOPALAKRISHNAN POTTI FOR R1 & 2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.854 of 1992 -------------------------------------- Dated this the 16th day of March, 2009. JUDGMENT This Second Appeal was disposed of by this Court as per judgment dated 14.6.2006 remanding the case to the trial court for fresh consideration. Respondents challenged that judgment and decree before the Supreme Court in Civil Appeal No.4744 of 2008 and as per judgment dated 28.7.2008 the appeal was allowed, judgment and decree of this Court dated 14.6.2006 were set aside as no substantial question of law as required under Section 100(4) of the Code of Civil Procedure (for short, “the Code”) was framed and the appeal was remitted to this Court for fresh consideration after compliance with Section 100 (4) of the Code. 2. The following substantial questions of law arise for a decision: (i) Whether in a suit for injunction the dispute between different parties with respect to the same property will constitute res judicata? (ii) Whether judgment of the first appellate court is not vitiated for having endorsed the view taken by the trial court without proper and independent decision by the appellate court? SA No.854/1992 2 (iii) Whether adverse remarks against the title deed relied upon by the respondents will not destroy their case of possession based purely on title? 3. The dispute in this proceedings is as to the possession of 95 cents in survey No.130/5 of Hosdurg Village referred to in the plaint schedule. Appellants claimed that the said property was acquired on an oral lease by Ramakrishna, husband of appellant No.1 ( she died during the pendency of the appeal) and father of appellant No.2 from Subraya and Dasappa about 40 years back on agreement to pay rent at the rate of 20/- per year and on the death of Ramakrishna the said property devolved on the legal representatives. While so, they got Ext.A1, assignment deed dated 23.1.1981 in their favour in respect of the suit property executed by Padmanabha and Gopala (who claimed under Subraya and Dasappa). They are in possession and enjoyment of the property. Alleging that respondents are attempting to trespass, they sued for a decree of prohibitory injunction. Respondents claimed that appellants or Ramakrishna had no right, title, interest or possession over the suit property. Suit property originally belonged to one Ramakrishna S/o.Vinayaka who assigned the same to Bhaskara Rao S/o.Lingappayya. Bhaskara Rao constructed a small tiled building in the said property and rented out that building to Ramakrishna, husband of appellant No.1 in the year 1960. Accordingly, appellants are staying in that building. Bhaskara Rao filed O.S.No.454 of 1969 against the appellants SA No.854/1992 3 and Ramakrishna, husband of appellant No.1 for a decree of prohibitory injunction. That suit was decreed. Though appellants preferred an appeal, it ended in a dismissal. According to the respondents, the decision in O.S.No.454 of 1969 operated as res judicata against the present claim of the appellants. Bhaskara Rao sold the suit property to Fr. George Pathiyil and Mannil George Thomas as per Ext.B4, assignment deed dated 16.6.1981 and they assigned the suit property in favour of respondents as per Exts.B5 and B6, assignment deeds dated 27.7.1983. Thus respondents are in possession and enjoyment of the suit property. Learned Munsiff found that the judgment and decree in O.S.No.454 of 1969 operated as res judicata against the claim of the appellants and also found that evidence adduced by the appellants as to their possession is quite shabby. Finding that respondents are in possession, suit was dismissed. First appellate court has concurred with those findings. 4. It is contended by the learned counsel for appellants that the findings entered by the courts below are erroneous. Courts below failed to note the decision in O.S.No.52 of 1981 filed by one Ramappayya and five others against Fr.George Pathiyil and Mannil George Thomas, predecessors-in-interest of the respondents. Learned counsel also contended that though respondents made an attempt to escape from the adverse finding made against their assignors in O.S.No.52 of 1981 by seeking permission to prefer a third party appeal, that attempt was failed and hence, they are bound by the finding in SA No.854/1992 4 O.S.No.52 of 1981. It is also submitted by the learned counsel that the finding of the courts below that the appellants have no possession over the suit property is not correct. At any rate, in view of the admitted fact that the building situated in the suit property is in the possession of the appellants, the case has to be remanded to the trial court for fresh consideration of the issues involved. Counsel for respondents would contend that the courts below rightly found that the decision in O.S.No.454 of 1969 operated as res judicata against the claim of title and possession raised by the appellants and their predecessor, Ramakrishna over the suit property and hence, they cannot be heard to say that they have title or possession over the suit property. It is also contended by the learned counsel that no reliable evidence is let in by the appellants to show that they are in possession of the suit property other than that the building situated therein which was entrusted to them by Bhaskara Rao, predecessor-in-interest of the respondents. 5. Exts.B1 and B2 are the C.C. of the decree and judgment in O.S.No.454 of 1969. Admittedly, that suit was filed by Bhaskara Rao, the predecessor-in-interest of the respondents against the appellants and Ramakrishna, husband of appellant No.1. In that suit, Bhaskara Rao contended that the suit property belonged to him, he having obtained the same as per registered sale deed dated 16.2.1956, he constructed building and that he entrusted the building to Ramakrishna, husband of appellant No.1 on rental SA No.854/1992 5 arrangement. Exts.B1 and B2 show that though appellants claimed independent title and possession over the suit property, those claims were found against and ultimately holding that Bhaskara Rao is the title holder of the suit property and in possession of the property other than the building which entrusted to the appellants and the husband of appellant No.1, granted decree in his favour. Appellants challenged that decree and judgment in A.S.No.33 of 1978. Ext.B3, copy of the judgment dated 15.11.1980 shows that the appellate court confirmed Exts.B1 and B2. Thus, there is a concluded finding that appellants have no title or possession over the suit property and that Bhaskara Rao, the predecessor-in-interest of the respondents owned and possessed the suit property. It is also found that the building in the suit property was constructed by Bhaskara Rao and he entrusted the building to the appellants and Ramakrishna, husband of appellant No.1 on rental arrangement. 6. One Ramappayya and five others filed O.S.No.8 of 1962 against Fr.George Pathiyil and Mannil George Thomas, the assignors of respondents (Exts.B5 and 6 are the assignment deeds executed by Fr.George Pathiyil and Mannil George Thomas). Ramappayya and others claimed title and possession of the suit property. That case was transferred to the Sub Court, Thalassery and renumbered as O.S.No.35 of 1965. In the meantime, Ramappayya and others filed O.S.No.52 of 1981 against Fr.George Pathiyil and Mannil George Thomas seeking the very same relief. Ext.A4 is the copy of the judgment in SA No.854/1992 6 O.S.No.52 of 1981. In that case, the trial court found that either side failed to prove absolute possession over the suit property, what is revealed is scramble for possession and in view of the finding that the plaintiffs therein have not proved their possession, that suit was dismissed. Plaintiffs in O.S.No.52 of 1981 did not challenge that judgment and decree but the respondents who took assignment of suit property as per Exts.B5 and B6 dated 27.7.1983 from the defendants in O.S.No.52 of 1981 made an attempt to challenge the judgment and decree (in O.S.No.52 of 1981) seeking leave of the court to prefer an appeal. That application was dismissed and that dismissal was confirmed by this Court in C.R.P.No.318 of 1985. Learned counsel for the appellants would contend that the decision in O.S.No.52 of 1981 as per Ext.A4 would therefore, prevail upon Exts.B1 to B3. 7. I am afraid, that contention cannot be accepted for the reason that as per Ext.A4, O.S.No.52 of 1981 was dismissed in favour of the assignors of the respondents though with an adverse finding as to the possession. As the suit ended in dismissal in favour of the assignors of the respondents, they had no opportunity to file an appeal against the adverse finding as to lack of absolute title and hence the decision in O.S.No.52 of 1981 cannot operate as res judicata against the defendants in that case or the respondents who claim under them. The result is that the finding regarding title and possession in favour of the respondents in O.S.No.454 of 1969 which has already become final (see SA No.854/1992 7 Exts.B1 to B3) will operate as res judicata against the present claim of title and possession raised by the appellants. There is little reason to interfere with the finding of the courts below in that regard. 8. It is then contended by the learned counsel for appellants that at any rate, it is open to the appellants to rely on Ext.A4 as a piece of evidence to contend that they are in possession of the suit property. Learned counsel also pressed into service Exts.A1 and A2. 9. True that judgments not inter-parties can be used as evidence of facts found therein but, there must be independent evidence regarding possession claimed by the appellants. Ext.A4 does not say that the plaintiff in O.S.No.52 of 1981 had title or possession. Ext.A1, the assignment deed executed by Padmanabha and Gopala who claimed to be the two members of the tharawad to which according to them the suit property originally belonged is executed on 23.1.1981, ie., much after A.S.No.33 of 1978 arising from Exts.B1 and B2, judgment and decree was dismissed on 15.11.1980 holding that the appellants had no title or possession over the suit property. It is interesting to note that in Ext.A1, even against the findings in Exts.B1 to B3 it is recited that the property was taken on oral lease by Ramakrishna, husband of appellant No.1 much before Ext.A1. Appellant No.2 when examined as PW1 (he was a revenue inspector during the time of earlier litigation) has conceded that SA No.854/1992 8 appellants are claiming title and possession of the suit property as per oral lease in favour of Ramakrishna and that they have documents to prove the oral lease but, apart from Ext.A2, no document is produced. It is also the version of PW1, according to him, that there were other members in the tharawad but Ext.A1 was executed only by two members of that tharawad. There is no explanation why the appellants did not get a sale deed executed by all the members of the tharawad. Ext.A2, the receipt for payment of revenue produced by the appellants is dated 20.2.1985 much after the decision in O.S.No.454 of 1969 which became final by Ext.B3 judgment dated 15.10.1980. Revenue authorities who are not concerned with dispute on title collected revenue as per Ext.A2, in view of Ext.A1. Apart from Exts.A1 and A2, no document is produced by the appellants to prove the possession claimed by them. I have stated that the findings in O.S.No.454 of 1969 stares at the appellants. Documents produced by the appellants are not sufficient to show their title or possession of the suit property (except the building situated therein which according to the respondents was entrusted to the appellants by Bhaskara Rao, their predecessor-in-interest which was upheld in O.S.No.454 of 1969). Learned Munsiff has considered the evidence adduced by the parties and found that apart from the finding regarding res judicata, appellants have also not proved their case of possession. Though not in so many words, first appellate court has also concurred with that. Hence, the contention that the appellants are in possession of the suit property cannot be sustained. SA No.854/1992 9 10. It is submitted by learned counsel that Original Application was filed for purchase of landlords' right as O.A.No.3913 of 1975, that was originally dismissed by the Land Tribunal, appellants preferred an appeal and the appellate authority set aside the dismissal of the application and that application was remitted to the Land Tribunal for fresh consideration. Learned counsel for appellants submits that the said application is pending. Pendency of such an application cannot affect the claim of the respondents as to title and possession as found in O.S.No.454 of 1969. 12. No other point is raised for consideration. Resultantly, this Second Appeal fails. It is dismissed. No costs. THOMAS P.JOSEPH, Judge. cks SA No.854/1992 10 Thomas P.Joseph, J. S.A.No.854 of 1992 JUDGMENT 16th March, 2009.