IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 SA.No. 515 of 1995(C) --------------------- A.S.NO.7/1985 OF THE ADDL. SUB COURT, IRINJALAKUDA. O.S.NO.589/1978 OF THE MUNSIFF'S COURT, IRINJALAKUDA. APPELLANTS/RESPONDENTS 2,7 & 8/2ND DEFENDNT & LEAGAL REPESENTATIVES OF THE IST DEFENDANT:: -------------- 1. TOMY VARGHESE, S/O.VAREED, THEKKUMTHALA HOUSE, KORATTY, THRISSUR DISTRICT. 2. SISTER ANJALOSE, D/O.LATE ROSSA, ADORATION CONVENT, ELAVOOR P.O. 3. SISTER GEORGINA, D/O.LATE ROSSA, NIRMALA BAVAN, THODUPUZHA. BY ADV. SRI.P.R.VENKETESH RESPONDENTS/LEAGAL REPRESENTATIVES OF APPELLANT/LEGAL REPRESENTATIVE OF PLAINTIFF: --------------- 1. KARTHYAYANI, WIDOW OF RAMAN, KAMATTATHIL CHATHU, MURINGOOR THEKKUMMURI VILLAGE, KUKUNDAPURAM TALUK. 2. DAMAYANTHI, D/O.LATE RAMAN, -DO- -DO- ADV. SRI.RENJITH THAMPAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT When this appeal came up for hearing on 21/5/09, neither the counsel nor the appellants are present. Therefore, the appeal was posted today for disposal. Today also there is no representation, when the appeal was called. Name of the parties called. Appeal is dismissed for default. 26th May, 2009 Sd/- Harun-Ul-Rashid, Judge. True Copy P.S. TO JUDGE P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 515 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of June, 2011. JUDGMENT The second defendant and the legal heirs of the first defendant, who died after the trial court has passed the decree are the appellants. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. According to the plaintiff, the plaint schedule property was obtained on lease from the Government and later on they obtained Ext.A1 patta dated 4.7.1970 in respect of 27 cents of land in Sy. No.464/1. The allegation is that defendants 1 and 2 trespassed into the eastern portion of the property belonging to the plaintiff and have attempted to put up a boundary wall adjacent to the National Highway. The plaintiff had earlier filed a suit for injunction as O.S.672 of 1972. Since there was no boundary to demarcate the S.A.515/1995. 2 plaintiff's property from the property on the eastern side, the plaintiff sought measurement of the property and then it was found that the plaintiff has 6 cents short of land than what he is entitled to. The area which has been trespassed upon by the defendants is shown as plaint B schedule. On the basis of these allegations the suit was laid. 3. The first and second defendants resisted the suit. They pointed out that the present suit is barred under Order 9 Rule 9 of the Code of Civil Procedure and the allegations in the plaint are false and incorrect. According to them, the description of the plaint schedule property is incorrect and the property is not identifiable. In between the property belonged to the plaintiff and the defendants, there is a well defined boundary and the defendants denied that they had trespassed into any portion of the property belonging to the plaintiff. The commissioner appointed in the earlier suit has submitted a report about the existence of a well defined boundary between the properties. The defendants pointed out that they had no intention to S.A.515/1995. 3 trespass into any portion of the property of the plaintiff. On the basis of these allegations, they prayed for a dismissal of the suit. 4. In the written statement filed by the fifth defendant, he pointed out that he obtained his property from the Government as per a purchase certificate and he had no intention to trespass into any portion of the plaintiff's property. It was also pointed out by him that he is an unnecessary party in the suit and he prayed for a dismissal of the suit as against him. 5. It is seen that the first and second defendants filed additional written statement pointing out that the earlier suit namely, O.S.672 of 1972, which was initially one for injunction was later amended to incorporate a prayer for recovery of possession of plaint B schedule property on the strength of plaintiff's title. That suit was dismissed for default and hence the present suit is not maintainable on the same cause of action. S.A.515/1995. 4 6. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts. A1 to A9 from the side of the plaintiff. The defendants had D.Ws.1 to 6 examined and Exts.B1 to B5 marked. Ext.C1 is the commission report and C2 is the plan prepared by the commissioner. 7. On an appreciation of the evidence in the case, the trial court came to the conclusion that the suit is barred under Order 9 Rule 9 of the Code of Civil Procedure. The trial court also found that the plaintiff was unsuccessful in establishing the identity of the property including plaint B schedule. It was further found that if at all the plaintiff had any manner of right over plaint B schedule, the same was lost by adverse possession and limitation. On the basis of the above findings, the suit was dismissed. The plaintiff carried the matter in appeal as A.S.7 of 1985 before the Sub Court, Irinjalakuda. The lower appellate court reversed the judgment and decree of the trial court and decreed the suit. S.A.515/1995. 5 8. In this Second Appeal, notice is seen issued on the following questions of law: “1) Does the granting of a provisional patta under Rule 9(2) of the Land Assignment Rules, even without the demarcation of the boundaries and exact extent of the property confer absolute title on the grantee to the property? 2) In a suit for recovery of possession, does the mentioning of a date different from the date shown in an earlier suit regarding the date of knowledge of trespass take the plaintiff out of the bar of Order 9 Rule 9 when the first suit was dismissed for default and both the suits are consequent to a single act of trespass? 3) Can the endorsement “Appeal not pressed may be dismissed without costs since already a suit on title has filed” and the consequent dismissal of the appeal lead to the inference that permission was granted by the court under Order 23 to withdraw the suit with liberty to file a fresh suit? 4) What is the nature of evidence required in a suit for recovery on the strength of title? S.A.515/1995. 6 5) When a suit has been dismissed for default and it has not been restored back to file, can permission be granted under Order 23 to withdraw that suit which is not on file, with liberty to file a fresh suit? 6) Can recovery be allowed on title on the basis of a provisional patta stating on approximate extent without anything to identify the property? 7) In a suit on title based on patta, when the identity is in dispute, should not he property be identified with reference to the records kept by government proceeding grant of patta etc.?” 9. Learned counsel appearing for the appellants pointed out that the lower appellate court was wrong in interfering with the judgment and decree of the trial court. The trial court, according to learned counsel, had considered all the matters in the proper perspective and had found in favour of the defendants. According to the learned counsel, the lower appellate court was not justified in holding that the suit is not barred under Order 9 Rule 9 since the cause of action is different. According to the counsel, the lower S.A.515/1995. 7 appellate court has not understood the real scope of the contention taken on the basis of Order 9 Rule 9 and has misdirected itself. The lower appellate court was also not justified in holding that the plaintiff had title to the suit property and that the right of the plaintiff is not barred by adverse possession and limitation. The observation of the lower appellate court that adverse possession can at best begin only from 1970 onwards when the plaintiff obtains patta is unsustainable in law. It was pointed out that even according to the plaintiff before obtaining patta they were in possession of the property, while the defendants contended that the plaintiff did not have 27 cents of property at any point of time but had only a lesser extent. The lower appellate court, according to learned counsel, has failed to note that there were constructions in the plaint schedule property which were put up by the first defendant or her husband long ago and it was rented out by the first defendant and she was receiving rent for the same. According to learned counsel there is no evidence to show S.A.515/1995. 8 that the plaintiff was ever in possession or are entitled to plaint B schedule property especially when the two properties are separated by well defined boundaries as found by the commissioner in the earlier suit. Accordingly it was contended that the judgment and decree of the lower appellate court may be set aside. 10. Learned counsel appearing for the respondents on the other hand contended that the second defendant in the suit was not a party to the earlier suit O.S. 672 of 1972 and therefore Order 9 Rule 9 cannot be attracted to the facts of the case. It is pointed out that apart from the fact that only when the written statement was filed by the defendants in the earlier suit, it was known to the plaintiff that the owner of the property on the eastern side was the second defendant in the suit and thereafter the suit was laid. Further it was contended that it was only on measurement by the Taluk Surveyor that the plaintiff came to know that he is in short of 6 cents of land out of 27 cents obtained by him under Ext.A1. The lower appellate court, S.A.515/1995. 9 according to learned counsel, has considered these aspects and the lower appellate court was right in holding that Order 9 Rule 9 can have no application. Equally justified is the finding with regard to the title to the suit property and the learned counsel went on to hold that there was actually no dispute regarding the title of the property at all. The dispute was confined to the eastern boundary and therefore the trial court was not justified in holding that the plaintiff had neither title to plaint B schedule property and it is not identifiable. According to the learned counsel, no grounds are made out to interfere with the judgment and decree of the lower appellate court. 11. Plaintiff relies on Ext.A1 by which the plaintiff obtained patta with regard to 27 cents of land in Sy. No.464/1. Plaint B schedule is shown as the property in relation to which trespass is alleged by the plaintiff. The first question that arises for consideration is whether Order 9 Rule 9 is attracted to the facts of this case. S.A.515/1995. 10 12. It is not in dispute that there was an earlier suit as O.S. 672 of 1972 against the defendants herein except the second defendant which was initially a suit for injunction but was later converted into one for recovery of possession on the strength of title. The allegation in the suit was that the defendants in the said suit had trespassed into a portion of the property which belonged to the plaintiff and he sought recovery of the same. 13. In order to attract Order 9 Rule 9 of the Code, it has to be shown by the defendants that the cause of action in the earlier suit is the same as the cause of action in the present suit. It will be useful therefore to refer to the plaint in the earlier suit. Ext.B1 is the said plaint. A reading of Ext.B1 shows that the claim of the plaintiff was that the property obtained by the plaintiff as per Ext.A1 in the present suit was puramboke land and even before he obtained Ext.A1 purchase certificate the plaintiff had been in possession of the property. The further allegation in the plaint was that the defendants in the said suit trespassed S.A.515/1995. 11 into 5 ½ cents of property and reduced it into their possession. Paragraph 9 mentions about the cause of action. 14. It is not in dispute that the earlier suit was dismissed for default. Even though a petition was filed to restore the suit on file, that was dismissed and the plaintiff in the said suit admittedly filed C.M.A. 2 of 1997. In C.M.A.2 of 1997 the respondents were set ex parte. However, it is seen from the records that the counsel appearing for the appellant in the said C.M.A. had endorsed in the appeal memorandum that the appeal is not being pressed. Since the appeal was dismissed the order in the suit stands confirmed. It is therefore clear that the order of dismissal for default of O.S. 672 of 1972 had become final. If as a matter of fact, the cause of action in the present suit is the same, then prohibition under Order 9 Rule 9 applies. 15. The lower appellate court took the view that the cause of action in the two suits are different. The reason given by the lower appellate court is that in the earlier suit S.A.515/1995. 12 the cause of action was as mentioned in paragraph 9 of the plaint in the said suit, which is marked as Ext.B1 while in the present suit the cause of action was that when the properties were measured by the Taluk Surveyor it was found that the plaintiffs had shortage of 6 cents of property going by Ext.A1 by which he was granted patta in respect of 27 cents. The lower appellate court was of the further view that the law is always for the decision of the dispute on merits and technicalities do not stand in the way. 16. The question that arises for consideration is whether there is any pleading in the case on hand so as to bring a second suit which in fact is on the same cause of action as in the earlier suit which was dismissed for default. Yet another question that arises for consideration is whether when the earlier suit was dismissed for default, if in the second suit an additional defendant is brought on the party array, whether it could be said that the suit is maintainable. 17. Before going further into the matter, it would be useful to refer to Order 9 Rule 9 CPC. Order 9 S.A.515/1995. 13 contemplates situations when the suit could be dismissed for default. The first one of them is under Order 9 Rule 3. That is a situation where the suit is dismissed when neither of the parties appeared before the court. When the suit is so dismissed, the remedy is provided under Order 9 Rule 4. The said Rule provides that when the suit is dismissed under Order 9 Rule 2 or Rule 3, the plaintiff may bring a fresh suit or that he may get the suit restored to file on his showing that there was sufficient cause for his failure as is referred to in Rule 2 or for his non-appearance earlier. The next is under Order 9 Rule 5. The dismissal under that provision occurs when the plaintiff fails to take steps within seven days when the earlier summons was returned unserved. We may now refer to Order 9 rule 8, which reads as follows: “8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim,or part thereof, in which case the Court S.A.515/1995. 14 shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.” When a suit is dismissed under Order 9 Rule 8, the remedy available is only under Order 9 Rule 9, which reads as follows: “9. Decree against plaintiff by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.” 18. In order to attract Order 9 Rule 9, it should be shown that the second suit is based on the same cause of action as in the earlier suit. S.A.515/1995. 15 19. That takes us to the question as to what one meant by 'cause of action'. One may at once refer to the decision reported in Mohammad Khalil Khan v. Mahbub Ali Mian (AIR 1949 Privy Council 78). It is no doubt true that the decision was rendered with reference to Order 2 Rule 2. But the meaning of the word cause of action which occurs in Order 2 Rule 2 is the same as in Order 9 Rule 9. In the said decision, it was held that the cause of action pleaded by the plaintiff has to be determined independent of any contention taken in the written statement. In the said decision it was held as follows: “The principles laid down in the cases thus fr discussed may be thus summarised: (1) The correct test in cases falling under O.2, R.2, is “whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit.” (2) The cause of action means every fact which will be necessary for the plaintiff to S.A.515/1995. 16 prove if traversed in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.” The term 'cause of action' was considered in the decision reported in Suraj Rattan Thirani v. Azamabad Tea Co. Ltd. (AIR 1965 SC 295). The decision construed the meaning of the 'same cause of action' occurring in Order 9 Rule 9. It was held as follows: “A cause of action is a bundle of facts on the basis of which relief is claimed. If in addition to the facts alleged in the first suit, further facts are S.A.515/1995. 17 alleged and relief sought on their basis also, and he explained the additional facts to be the allegations about possession and dispossession in October, 1934, then the position in law was that the entire complexion of the suit is changed with the result that the words of O.IX, R.9 “in respect of the same cause of action” are not satisfied and he plaintiff is entitled to reagitate the entire cause of action in the second suit. In support of this submission, learned counsel invited our attention to certain observations in a few decisions to which we do not consider it necessary to refer as we do not see any substance to the argument. We consider that the test adopted by the Judicial Committee for determining the identity of the causes of action in two suits in Mohammed Khalil Khan v. Mahbub Ali Mian, is sound and expresses correctly the proper interpretation of the provision. In that case Sir Madhavan Nair, after an exhaustive discussion of the meaning of the expression “same cause of action” which occurs in a similar context in para (1) of O.II R.2 of the Civil Procedure Code observed: “In considering whether the cause of action in the subsequent suit is the same or not, as the S.A.515/1995. 18 cause of action in the previous suit, the test to be applied is are the causes of action in the two suits in substance - not technically - identical?” 20. Applying the above test, it needs to be noticed if the cause of action in the two suits are identical. One may recall here that the plea taken in the plaint is that it was after the measurement by the Taluk Surveyor that the plaintiff came to know that he is in short of six cents of property and it is in the possession of the defendants and he is entitled to recover the same. It is significant to notice that there is absolutely no evidence at all to show that there was any measurement as contended by the plaintiff. The plaintiff would further say that a sketch was prepared by the Surveyor concerned, but that was not produced. It is also significant to notice that in the earlier suit the defendants had clearly pointed out that the property lying on the eastern side of the plaint schedule property belonged to the second defendant in the present suit. But still he was not S.A.515/1995. 19 impleaded in the earlier suit O.S. 672 of 1972. It has to be noticed that the plaint was amended incorporating a prayer for recovery of possession on the strength of title. In the present suit also the allegation go to show that it was the first defendant who had trespassed into the property and reduced it into her possession. 21. Learned counsel appearing for the respondents pointed out that it was only after the written statement in O.S. 672 of 1972 was filed, the plaintiff in the said suit had come to know that the property lying on the eastern side of the suit property belong to the second defendant in the present suit. That, according to the plaintiff, give a fresh cause of action and it was also contended that the cause of action is a recurring one. 22. It is difficult to accept the above contention. On a reading of the plaint in both the suits, it would appear that the allegation against the first defendant in both the suits are identical and the cause of action atleast against the defendants except defendant No.2 is identical. As rightly S.A.515/1995. 20 pointed out by the learned counsel for the appellants, by merely saying that it was on measurement by the Taluk Surveyor that the plaintiff in the present suit had come to know about the shortage of extent cannot give rise to a fresh cause of action especially when the said allegation is not proved. The said allegation is made in the present case only for the purpose of alleging a different cause of action than in the earlier suit. The trial court has considered this aspect in considerable detail and has come to the conclusion that the suit is barred under Order 9 Rule 9. 23. One fact remains to be considered which has not been dealt with by both the courts below. Even assuming that the cause of action is the same in both