IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 RSA.No. 733 of 2006 ----------------------- AS.278/1996 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.445/1993 of PRL.M.C.,TRIVANDRUM .................... APPELLANTS: APPELLANTS/PLAINTIFFS. -------------------------------------------- 1. GEETHAKUMARI, T.C.28/640 (2) ASTHISTAPICHA VEEDU, PURAYIDAM, PUNNAPURAM, THIRUVANANTHAPURAM. 2. B.SASIDHARAN NAIR, TC.28/640 (2) ASTHISTAPICHA VEEDU, PURAYIDAM, PUNNAPURAM, THIRUVANANTHAPURAM. 3. C.RADHA DEVI, TC.28/640 (2). ASTHISTAPICHA VEEDU, PURAYIDAM, PUNNAPURAM, THIRUVANANTHAPURAM. 4. G.SASIDHARAN NAIR, TC.28/640 (2) ASTHISTAPICHA VEEDU, PURAYIDAM, PUNNAPURAM, THIRUVANANTHAPURAM. 5. P.SULOCHANA KUMARI, TC.28/640 (2) ASTHISTAPICHA VEEDU, PURAYIDAM, PUNNAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.P.S.RAMESH KUMAR RESPONDENTS: DEFENDANTS 1 TO 3 & 5 TO 6. ---------------------------------------------------- 1. CHELLAMMA RETNAMMA FROM KOTTAPPURAM PUTHENVEEDU, AMBALATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT ASTHISTAPICHA KINNATTUMKARA VEEDU, PUNNAPPURAM, THIRUVANANTHAPURAM. 2. VIJAYAMMA D.NAIR FROM KOTTAPPURAM PUTHENVEEDU, AMBALATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT ASTHISTAPICHA KINNATTUMKARA VEEDU, PUNNAPPURAM, THIRUVANANTHAPURAM. 3. GIRIJAKUMARI, FROM KOTTAPPURAM PUTHENVEEDU, AMBALATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT ASTHISTAPICHA KINNATTUMKARA VEEDU, PUNNAPPURAM, THIRUVANANTHAPURAM. 4. V.ANILKUMAR, FROM KOTTAPPURAM PUTHENVEEDU, AMBALATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT ASTHISTAPICHA KINNATTUMKARA VEEDU, PUNNAPPURAM THIRUVANANTHAPURAM. 5. V.UNNIKRISHNAN NAIR FROM KOTTAPPURAM PUTHENVEEDU, AMBALATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT ASTHISTAPICHA KINNATTUMKARA VEEDU, PUNNAPPURAM, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALALCHANDRAN, J. ---------------------------------------------------- R.S.A. No 733 of 2006 ---------------------------------------------------- Dated this the 25th June 2008 JUDGMENT The appellants are the plaintiffs in O.S. No 445 of 1993 on the file of the Munsiff's Court, Thiruvananthapuram who suffered defeat, both in the trial court and in the first appellate court, and they assail the concurrent verdicts passed by the courts below. 2. The plaintiffs instituted O.S. No 445 of 1993 aforesaid alleging inter alia, that A schedule property was originally Service Inam land attached to Sree Padmanabha Swami temple and was assigned as per the order of the Special Tahsildar, Service Inam Land, Thiruvananthapuram in S.M. No 427 of 1989 in favour of one Sreedharan Nair son of Govinda Pillai who was doing Oozhiyam services in the temple and was in possession of the said property on the date of commencement of Kerala Service Inam Land (Vesting and Enfranchisement) Act, 1981, that the first plaintiff got assigned 4 cents of property out of A schedule property as per Ext A2 sale deed in 1990 from the said Sreedharan Nair, that plaintiffs 2 and 3 got RSA 733/06 2 assigned 2 cents from out of A schedule property under Ext A5 from the said Sreedharan Nair and plaintiffs 4 and 5 jointly purchased 3 ¼ cents from out of the said A schedule property from the said Sreedharan Nair under Ext A6 sale deed and they are in possession and enjoyment of the properties so purchased; that the plaintiffs were informed by Amin of the Munsiff's Court, Thiruvananthapuram that there is a decree passed in O.S. No 1235 of 1982 for delivery of A schedule property in favour of defendants herein and on further enquiry it was revealed that the suit was instituted by the defendants against Sreedharan Nair and two others, the vendors of the plaintiffs, that the plaintiffs were not parties to O.S. No 1235 of 1982 and are not bound by the decree in the said suit, that the order in S.M. 427 of 1989 has become final and conclusive, that the decree in O.S. No 1235 of 1982 does in no way affect the title of the plaintiffs over portions of A schedule property which they purchased from Sreedharan Nair or the A schedule property in view of Section 18 of the Kerala Service Inam Land (Vesting andEnfranchisement) Act, 1981; that though the Amin returned on getting explanation of the position, the plaintiffs apprehend that the decree in O.S. No 1235 of 1982 will be executed; that by reason of the claim of the defendants RSA 733/06 3 over A schedule property a cloud is created on the plaintiff's title and hence it has become necessary to have their title declared over the schedule properties purchased by them; that the portion of the property delivered over to defendants from A schedule property is described as B schedule, that the defendants have no manner of right over B schedule property as well and that the plaintiffs are entitled to recover the same on the strength of their title and hence the suit for declaration of plaintiffs' title over A schedule property by virtue of sale deeds in their favour executed on the strength of Ext A1 purchase certificate obtained by Sreedharan Nair in S.M. 427 of 1989 and further that the decree in O.S.No 1235 of 1982 of the Munsiff's Court, Thiruvananthapuram has to be set aside. 3. Defendants 1, 3 and 6 filed written statement. They contended that the suit is barred in view of Section 47 of the Code of Civil Procedure and is hit by the principle of res judicata by reason of the decree in O.S. No 1235 of 1982. Exts A2, A5 and A6 documents relied on by the plaintiffs to claim title are documents hit by lis pendens and those documents do not confer any manner of right to the plaintiffs over “A” schedule property. “A” schedule property was not Service Inam Land and it forms part of 26.5 cents RSA 733/06 4 which originally belonged to wife of Govinda Pillai and the said Govinda Pillai got absolute right over the same after the death of his wife. Govinda Pillai gifted 10 cents from the northern extremity of the 26.5 cents in favour of the defendants who are the wife and children of his son Vamadevan Nair by virtue of Ext B3 gift deed reserving right of enjoyment with the donor during his lifetime. Out of the remaining 16 ½ cents 6 ½ cents from the south western extremity was given to another son Sukumaran Nair and the remaining 10 cents was given to third defendant as per Will No 97 of 1995. Govinda Pillai who had reserved life interest over the property gifted vide Ext B3, permitted Sreedharan Nair to have his residence in the building thereon. On the death of Govinda Pillai on 29.08.1975 the defendants got right to be in possession of the property gifted in their favour. Sreedharan Nair who was permitted to occupy the building was forcibly keeping possession of the schedule property with him after the death of Govinda Pillai and he was reluctant to hand over possession to the defendants and O.S. No 1235 of 1982 was filed in the above circumstances for declaration of title and recovery of possession. The suit was decreed in favour of the defendants. Appeal filed assailing the said decree was dismissed RSA 733/06 5 on 27.07.1992 and the property was delivered over to the defendants herein in execution of the decree on 22.02.1993 and thereafter they are in absolute possession and enjoyment of the same. The plaintiffs have no manner of possession over the property described in “A” schedule, the documents in their favour are sham documents created fraudulently by the said Sreedharan Nair to defeat the decree in O.S. No 1235 of 1982 and Sreedharan Nair was only a trespasser in “A” schedule property and the purchase certificate in S.M. Proceedings No 427/1989 was obtained by him by fraudulent means suppressing material facts. The said purchase certificate is void ab initio and is only to be ignored as a nullity. Even assuming that the purchase certificate granted in S.M. Proceedings No 427/89 is legally sustainable that was an advantage obtained by Sreedharan Nair by virtue of his position as a trespasser during the pendency of O.S.No 1235 of 1982. The plaintiffs did not get any manner of right on the basis of the documents got executed from Sreedharan Nair on the basis of Ext A1 purchase certificate. The plaintiffs are not entitled to any of the reliefs claimed. 4. A replication was also filed by the plaintiffs reiterating the allegations in the plaint and contending that the court has no RSA 733/06 6 jurisdiction to consider whether A schedule property was Service Inam Land as prayed for and that a decree as prayed for is not liable to be granted. 5. The trial court, on the above pleadings raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of P.Ws 1 to 3 and documentary evidence, Exts. A1 to A21, B1 to B14 and C1, C1(a), C(2) and C2(a) dismissed the suit. Appeal filed against the said dismissal was also dismissed as already observed. Hence this Regular Second Appeal by the aggrieved plaintiffs against the concurrent verdicts. 6. It is vehemently contended before me by the learned counsel for the appellants that the schedule property is Service Inam Land and whether it vests with the Government on the commencement of the Kerala Service Inam Land (Vesting and Enfranchisement) Act of 1981 and if so, the decree passed in a suit instituted subsequently is a nullity for want of initial jurisdiction in view of Section 18 of the said Act is a substantial question of law to be considered by this court and that the findings of the court below that the suit is barred by res judicata and lis pendens and also for the reason that it is hit by Section 47 of the Code of Civil Procedure RSA 733/06 7 are erroneous and that right which has been derived by the plaintiffs who are the appellants herein under Exts. A1 purchase certificate should have been upheld. 7. It is worthy to note that the claim advanced by the plaintiffs is on the basis of Ext A2 sale deed for an extent of 4 cents from out of A schedule property in favour of the first plaintiff, Ext A5 in favour of plaintiffs 2 and 3 for another 2 cents from out of A schedule property and Ext A6 sale deed for another 3 ¼ cents in favour of plaintiffs 4 and 5 from out of A schedule property which was obtained by Sreedharan Nair under Ext A1 purchase certificate dated 02.02.1990. The suit O.S. No 1235 of 1982 was pending as on the date of initiation of S.M proceedings. Counsel submits that it was not the suit but A.S. No 340 of 1987 filed before the District Court from the decree in O.S. No 1235 of 1982 that was pending at the time of initiation of proceedings in S.M. 427 of 1989. However, that does not make any difference because appeal is only continuation of the proceedings. The proceedings initiated as S.M. 427 of 1989 behind the back of the respondents herein who were plaintiffs in O.S. No 1235 of 1982 when the said civil dispute with the predecessor in interest of the present appellants was pending has no legal effect RSA 733/06 8 and is not binding on the respondents who were not made parties in the said proceedings. Hence Ext A1 purchase certificate is of no legal consequence as far as the decree passed in O.S.No 1235 of 1982 which was confirmed by the appellate court by the judgment in A.S. No 340 of 1987 of the District Court, Thiruvananthapuram is concerned. The assignment under Exts. A2, A5 and A6 in favour of the plaintiffs, as already stated, are all after the above suit and no right can accrue to the appellants-plaintiffs other than the right, if any, which Sreedharan Nair had got. In other words, the appellants- plaintiffs are persons claiming title under the judgment-debtor in O.S. No 1235 of 1982 and they have no independent right to be agitated by a fresh suit. As a consequence the decree in O.S. No 1235 of 1982 confirmed in appeal by judgment in A.S. No 340 of 1987 operates as res judicata for the claim advanced by the appellants in the present suit as rightly found by the court below. Further the assignments in their favour are also hit by lis pendens as has been concurrently found by the courts below. The courts below have also found that the present suit is barred by Section 47 of the Code of Civil Procedure. By reason of Section 47 C.P.C all questions arising between the parties to the suit in which a decree was passed, (in the RSA 733/06 9 present case the decree passed in O.S. 1235 of 1982) or their representatives, and relating to the execution, discharge or satisfaction of the decree has to be determined by the court executing the decree and not by a separate suit. Under section 47 (3)(b) it is further provided that even questions relating to delivery of possession of property to the auction purchaser in court sale or his representatives shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47 C.P.C. Hence, as rightly held concurrently by the courts below the fresh suit instituted by the appellants in the court below is barred also by reason of Section 47 C.P.C. It is futile for the appellants to contend that simply because they have raised a contention that the schedule property is Service Inam Land it has to be held that the civil court had no jurisdiction to pass a decree in O.S. 1235 of 1982 and the said contention is one which might and ought to have been raised by Sreedharan Nair, the predecessor of the present appellants in O.S. No 1235 of 1982 and not by the appellants-plaintiff in O.S. No 445 of 1993 from which this R.S.A arises. Thus there is absolutely no merit in this appeal and no question of law and much less any substantial question of law arises RSA 733/06 10 for consideration in this Regular Second Appeal. 8. In the result, I dismiss this Regular Second Appeal in limini refusing admission. Sd/- K.P. BALACHANDRAN Judge 25/06/2008 en [true copy]