IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 FAO.No. 222 of 2009() --------------------- AS.32/2007 of I ADDL. DISTRICT COURT, TRIVANDRUM OS.146/2005 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANT/RESPONDETNS 1 TO 3/DEFENDANTS: ---------------------------------------------------------------------------- 1. NABEEZA BEEVI, W/O.ABDUL HAMEED, POTTA VILA VEEDU, CONVENT ROAD, PRAVACHAMBALAM, TRIVANDRUM. 2. SARADA, W/O.REGHU, PALOOR KONAM, PRAVACHAMBALAM, NEMOM P.O., TRIVANDRUM. 3. ZEENATH BEEVI, ZAM ZAM MANZIL, CONVENT ROAD, PRAVACHAMBALAM, NEMOM P.O., TRIVANDRUM. BY ADV. MR.R.GOPAN RESPONDENT(S): APPELLANTS & RESPONDENTS 4 & 5/PLAINTIFFS: ------------------------------------------------------------------------------------------------------- 1. KARUNAKARAN NAIR, S/O.MADHAVAN PILLAI, VASANTHAVILASOM, CONVENT ROAD, PRAVACHAMBALAM, NEMOM P.O., TRIVANDRUM. 2. VASANTHAKUMARI, D/O.PADMAVATHY, VASANTHA VILASOM, CONVENT ROAD, PRAVACHAMBALAM, NEMOM P.O., TRIVANDRUM. 3. NISHA, D/O.VASANTHAKUMARI, RESIDING AT VASANTHAVILASAM, CONVENT ROAD, PRAVACHAMBALAM, NEMOM P.O., THIRUVANANTHAPURAM R1 TO R3 BY ADVS. MR.V.SURESH, MR.G.SUDHEER. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.3185/2009 IN FAO NO.222/2009 DISMISSED 20/01/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 222 OF 2009 = = = = = = = = = = = = = = = Dated this the 20th day of January, 2010. J U D G M E N T This appeal is preferred against the order of remand passed by the District Judge, Thiruvananthapuram in A.S.32/07. The suit is one for an injunction with respect to the plaint schedule property. It is the case of the plaintiffs that the plaintiffs are in possession of the property and the defendants are attempting to trespass into the plaint schedule property and therefore they must be prevented by an order of injunction in the case. 2. On the other hand the defendants would contend that the disputed area of the property is a pathway over which the plaintiff does not have any exclusive right and therefore the plaintiff is not entitled to the injunction with respect to the pathway mentioned in the written statement of the defendants. Or in other words the scope of the suit is to consider whether the pathway which is admittedly there is F.A.O. 222 OF 2009 -:2:- a part and parcel of the plaintiffs' property which belong exclusively to the plaintiff or not. The possessory aspect will follow the same in the light of the fact that is a pathway admittedly. The trial court raised an issue regarding resjudicata in the light of the decision of the Court in an earlier suit O.S.3586/89 and A.S.19/94. 3. O.S.3586/89 was a suit for damages filed by the plaintiff against K.S.E.B., Krishnankutty Nadar and Nabeeza Beevi. The said Nabeeza Beevi is the first defendant in the suit. The suit was filed by the plaintiff with respect to the erection of two electric posts in the disputed pathway contending that the property belonged to him and electric posts have been erected without his sanction and it has caused him damages and so he is entitled to a damage of Rs.5,000/-. The defendant 1 and 2, K.S.E.B. and its official would contend for the position that the plaintiff has not really obstructed to the erection and initially post was erected in 1985 by which the plaintiff was given electricity connection and subsequently on the same line another electric post has F.A.O. 222 OF 2009 -:3:- been erected and connection given to defendants 3 and 4. Therefore it is contended by the Electricity Board that there is an implied consent. Defendants 3 and 4 who are first defendant and one Krishnankutty Nadar would contend that the places where the electric posts were erected is a pathway which is used by all and the plaintiff is not having any exclusive right over that pathway. So in order to entitle the plaintiff to get a decree in the suit the plaintiff should have proved (i) that the pathway belongs to him exclusively and (ii) for the purpose of erection of the electric posts no permission has been given by him as he is the owner. 4. So evidently the most material point that arose for consideration really was to find out whether the plaintiff has got exclusive right over the way in which the electric post is installed. The learned trial judge in O.S.3586/89 had considered this point. While discussing issue No.1 at paragraph 10 it is stated that; “At this stage it is also pertinent to note that the defendants have categorically denied the ownership and exclusive user or F.A.O. 222 OF 2009 -:4:- plaintiff over the pathway. According to them the pathway is common and the plaintiff have no exclusive right over it. Apart from Ext.A1 there is nothing before me to show that the pathway exclusively belongs to the plaintiff. In spite of specific contention of the defendants, the plaintiff has not made any effort to prove that the way exclusively belong to him. No Commission is taken out to measure and locate the property and the same is fatal to the case of the plaintiff.” In appeal the appellate court in A.S.19/94 considered this point and held that, “In the light of the specific contention by the defendants 3 and 4 questioning the right of the plaintiffs such a contention on the part of the other defendants regarding the consent cannot take away the obligation to prove the right. 5. So both the Courts in O.S.3586/89 and A.S.19/94 approached the issue on the basis that the plaintiff has to prove his exclusive right over the pathway and only on proof F.A.O. 222 OF 2009 -:5:- of the same he is entitled to claim damages. The Court below also held that since the plaintiff has failed to prove the same just because the defendants 1 and 2 had pleaded about the implied consent which will not take away the liability of the plaintiff to prove the case. So a reading of the plaint, written statement and judgments referred to above would conclusively and convincingly establish that the right of the plaintiff over the disputed way which is in dispute now in the form of an injunction suit was directly and substantially in issue for determining the controversy that had arisen in the earlier suit. The approach of the appellate court that it was not so cannot be accepted. I was trying to analyze whether it was directly and substantially in issue or it was only an incidental in issue. When a claim of damages filed by a plaintiff with respect to the intrusion of his right by erection of electric posts in his property and when it is denied by some of the defendants there was a duty cast upon that plaintiff to establish that it was in his property those erections were made. It was not proved in that case which F.A.O. 222 OF 2009 -:6:- ultimately led to dismissal of the case. Now though a larger extent of property is shown in this case there is no dispute with respect to other parts of the property other than the pathway which was the subject matter in the earlier suit as well. Therefore squarely the principles of resjudicata will apply and the finding of the appellate court that resjudicata will not apply cannot be sustained in this case. Therefore I agree with the contention of the learned counsel for the appellant in that regard. So the order of remand is set aside and I hold that the suit is barred by resjudicata by virtue of the decision in Exts.B1 and B2 and therefore the suit cannot be entertained and it is dismissed. Under the special circumstances I direct the parties to bear their costs. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-