IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 RSA.No. 402 of 2010(F) ---------------------- AS.74/2003 of SUB COURT,NEYYATTINKARA OS.253/1997 of II ADDL.MUNSIFF COURT, NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KARTHIYANI AMMAL PADMAKSHY AMMAL, THANPONNANKAVILA VEEDU, KARAMKULAM DESOM, KANJIRAMKULAM PAKUTHY. BY ADV. SRI.ANIL K.NARENDRAN SRI.K.K.DHEERENDRAKRISHNAN RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. GOVERNMENT OF KERALA, REP.BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. SURVEY DIRECTOR, SURVEY DIRECTOR OFFICE, THIRUVANANTHAPURAM. 3. RE-SURVEY ASSISTANT DIRECTOR, SURVEY AND LAND RECORDS, RE-SURVEY ASSISTANT DIRECTOR OFFICE, NEYYATTINKARA. 4. RE-SURVEY SUPERINTENDENT, NEYYATTINKARA MUNICIPALITY AREA, RE-SURVEY SUPERINTENDENT'S OFFICE, NEYYATTINKARA. 5. SPECIAL TAHSILDAR, SURVEY AND LAND RECORDS, NEYYATTINKARA. 6. PRABHAKUMARI, D/O.BHAGAVATHI PILLAI, AMBALATHUMVILA VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE AND TALUK. ADV. SRI.G.SUDHEER ( CAVEATOR) FOR R6 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/11/2010, ALONG WITH RSA NO. 545 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.402 OF 2010 & R.S.A No.545 OF 2010 -------------------------------- Dated this the 11th day of November 2010 JUDGMENT Two suits were jointly tried by the Second Additional Munsiff Court, Neyyattinkara. One of them, O.S No.40/1994, was filed by the common respondent in these appeals and the other by the common appellant, O.S No.253/1997. The former suit, O.S No.40/1997, was one for declaration and injunction wherein four items of properties were scheduled in the suit. Seeking declaration of title and possession of the plaintiff over 'A' schedule, a prohibitory injunction was sought against the defendant (common appellant herein) from interfering with the boundary of 'A' schedule, polluting the well described in 'B' schedule and also not to cause any obstruction to the plaintiff in the enjoyment of 'C' schedule, a pathway, over which a further declaration of right of easement by prescription was also raised. Resisting the suit claim, the defendant (common appellant herein) raised a counter claim for demolishing a new compound wall purported to have been put up through the middle portion of 'B' schedule, the well, after institution of the suit by the plaintiff. Subsequently the defendant filed the second suit, O.S No.253/1997, wherein declaration of her title and setting aside of R.S.A Nos. 402 and 545 OF 2010 - 2 - resurvey records relating to the suit property was canvassed impleading the State and public officials also as codefendants with the plaintiff in the other suit in the array of defendants. The plaintiff in O.S No.40/1997, one among the defendants in the above suit, resisted the suit claims filing a written statement. Some of the other defendants also filed statements disputing the claim of the plaintiff in their suit. Both the suits, after joint trial, ultimately led to decreeing of O.S No.40/1997 and declining of the counter claim raised by the defendant therein (common appellant herein), by which the title of the plaintiff over 'A' schedule in that suit and also right of easement by prescription over 'C' schedule with the injunction applied for was granted in favour of that plaintiff by the court. The other suit, O.S No.253/1997 was also allowed in part but with respect to the plot identified by the advocate commissioner in Ext.C2(a) plan and to that extent alone, relief was granted to the plaintiff therein (common appellant herein). Feeling aggrieved, two appeals were preferred as A.S No.4/2003 and A.S No.74/2003 by the common appellant herein before the Sub Court, Neyyattinkara. The lower appellate court, after reappreciating the materials tendered, concurring with the conclusion formed by the trial court negatived the challenges and dismissed the appeals confirming the decision rendered by the R.S.A Nos. 402 and 545 OF 2010 - 3 - trial court. As against the decision rendered by the courts below as indicated above, these appeals have been preferred. At the time of hearing, after perusing the judgment rendered by both the courts below, to the query raised by me as to whether the common appellants had challenged the declining of the counter claim raised in O.S No.40/1997 by the trial court in the appeal preferred against the decision thereof before the lower appellate court, it has fairly conceded by the counsel for the appellant, by inadvertence, such challenge was not made though two separate appeals had been filed from the decrees passed in the two suits. When that be the position, as the two suits and also the counter claim raised in one of them were jointly considered and disposed under a common judgment, it was a case of rendering a decision in all the cases together and failure of the appellant to challenge the declining of her counter claim, which too was based on her title over the suit property, over which a finding was entered against her after adjudicating the disputes involved, would constitute res judicata barring the appellant from challenging the validity of the decrees granted by the court in the two suits. Res judicata, as it is based on public policy, cannot be trifled with, on lame excuse set up that there was inadvertence on the part of the party to appeal against the adverse decision rendered against R.S.A Nos. 402 and 545 OF 2010 - 4 - him in a suit or proceeding. This court in “Janardhanan Pillai v Kochunarayani Amma” (1976 KLJ 279 FB) has explained of consequences which would follow in the event of failure of the party to challenge the adverse decision rendered in one of the suits where two or more suits are jointly tried and disposed under a common judgment. The decision rendered in the connected suit, if not appealed becomes final and operates as res judicata. Principles relating to the operation of res judicata in such cases in relation to two or more suits jointly tried would apply in the case of failure of a party to challenge the decision rendered in a counter claim raised in a suit. In effect, such counter claim by the defendant in a suit as contemplated under Order 8 Rule 6 (B) of the Code of Civil Procedure is essentially a cross suit which has to be treated as a plaint in a suit and disposed of following the procedure relating to a suit. Even if the suit in which counter claim is nonprosecuted by the plaintiff Order 8 Rule 6 (G) mandates that the counter claim has to be tried and disposed of on its merits for the reason it is treated as a separate suit. When such be the position, as covered by the procedure under the Code, it is needless to point out that the failure of the present appellant to impeach the dismissal of the counter claim raised in O.S No.40/1994 is fatal and in effect forbid her from challenging R.S.A Nos. 402 and 545 OF 2010 - 5 - the decision rendered in the suit O.S No.40/1994 and O.S No.253/1997. The court below, without looking into that aspect disposed of the two appeals on its merits ,but, that would not enure to the benefits of the appellant to get over the bar of res judicata. Both the appeals are therefore dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv