IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 SA.No. 867 of 1997(C) ----------------------------- AS.43/1994 of DISTRICT COURT, ALAPPUZHA OS.261/1982 of PRL. MUNSIFF COURT, ALAPPUZHA .................... APPELLANT(S): IST APPELLANT/ 2ND DEFENDANT ----------------------- AVIRA JOSEPH, THURUTHUMALIL , PURAKAD, AMBALAPUZHA. BY ADV. SRI.ROY CHACKO RESPONDENT(S): RESPONDENTS 1 TO 6 AND APPELLANTS 2 & 3/PLAINTIFFS -------------------------- 1 TO 5 AND DEFENDANTS 3 & 4 1. VARGHESE MATHAI, PUTHENPARAMBIL, PURAKKAD, AMBALAPUZHA. *2 VARGHESE CHERIAN, PUTHENPARAMBIL, PURAKKAD, AMBALAPUZHA. (DIED) 3. VARGHESE JOSEPH, PUTHENPARAMBIL, PURAKKAD, AMBALAPUZHA. 4. VARGHESE SEBASTIAN, PUTHENPARAMBIL, PURAKKAD, AMBALAPUZHA. 5. ANIAMMA THOMAS, PUTHENPARAMBIL, PURAKKAD , AMBALAPUZHA. 6. HAVILDAR P.V.ANTONY, PUTHENPARAMBIL, PURAKKAD, AMBALAPUZHA. 7. AVIRA PUNNOOSE, THURUTHUMALIL, PURAKKAD, AMBALAPUZHA. S.A. NO.867/1997 8. AVIRA THOMAS, THURUTHIMALIL, PURAKKAD , AMBALAPUZHA. *IT IS RECORDED THAT THE 2ND RESPONDENT IS DIED AND R1 AND R3 TO R6 ARE THE LRS OF THE DECEASED R2 AS PER ORDER DT. 1.3.04 ON MEMO DT. 7.1.04 VIDE C.F. NO. 727/04.E4 ADV. SMT.ELIZABETH MATHAI IDICULLA SRI.MOHAN IDICULLA ABRAHAM FOR SRI.RACHEL JOSEPH FOR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2010, ALONG WITH SA. NO.209 OF 1998 THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 867 of 1997 & 209 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010. JUDGMENT Three suits, i.e. O.S.Nos. 261 and 724 of 1982 and O.S.193 of 1983 before the Munsiff's Court, Alappuzha were jointly tried and disposed of by a common judgment. O.S. 261 of 1982 was filed by the respondents herein while the other two suits were filed by the appellant. The appellant's suits were dismissed and respondents' suit was decreed. The appellant preferred first appeals before the lower appellate court, which confirmed the judgment and decree of the court below. 2. O.S. 261 of 1982 is treated as the leading case and the parties and facts are referred to as they are available in the said suit. 3. The facts are as follows: All the three suits were for permanent prohibitory injunction. The plaint S.A.867/97 & 209/98. 2 schedule property in O.S. 261 of 1992 has an extent of about four acres and is a garden land and paddy field. They are in Sy. Nos. 68/12A and 12B, i.e. 1.27 acres comprised in Sy. No.68/12A and 2.73 acres comprised in Sy. No.68/12B. The properties were initially owned by the predecessors-in- interest of defendants 2 to 5 in O.S. 261 of 1982. The properties were brought to sale in court auction in execution of the decree in O.S. 171 of 1094 M.E. of Munsiff's court, Alappuzha. One Neelakanta Iyyer Subramaniya Iyyer bid the property and the sale was confirmed in his favour and possession was taken. The plaintiff and their predecessor in interest took the property on lease from Neelakanta Iyyer Subramniya Iyyer. Ever since then, they are in actual possession and enjoyment of the property. They have obtained purchase certificates also. In the purchase certificates, some of the defendants were made parties. Even though they raised strong objection, that was rejected and purchase certificate was issued. Later, the defendants trespassed into the property and put up a shed therein. S.A.867/97 & 209/98. 3 They have no manner of right over the suit property. So suits for prohibitory injunction and mandatory injunction were laid. 4. Defendants 2, 3 and 4 contested the suit. According to them, their predecessors in interest were the owners of the property. Even though the property was brought to sale and sold, no delivery was taken by the auction purchaser. The property continued to be in the possession and enjoyment of the defendants and their predecessors in interest. The order in O.A. is not binding on them. These defendants are not parties to the O.A. The second defendant has been in possession of the property for a long time and has been residing there for more than 70 years. Neither the plaintiff nor the first defendant have ever obtained possession of the suit property. They therefore prayed for a dismissal of the suit. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and the documents marked as Exts. A1 to A14. S.A.867/97 & 209/98. 4 The contesting defendants had D.Ws. 1 to 3 examined and Exts.B1 to B9 marked. Exts. C1 to C3 are the commission report and plan, and C.Ws. 1 and 2 were examined as court witnesses. 6. The trial court found that as per Ext.A1 judgment dated 27.1.1960 Neelakanta Iyyer Subramania Iyyer had obtained delivery and possession of the property and thereafter the defendants have never been in possession of the property. On the basis of the above findings, O.S. 261 of 1982 was decreed and the other two suits were dismissed. The trial court after consideration of the materials before it came to the following findings: “In the result, O.S. 261 of 1982 is decreed restraining the defendants two to four from trespassing into the plaint schedule property and from taking usufructs therefrom. The Receiver appointed in O.S. 193 of 1983 is directed to surrender the possession of the property concerned to the plaintiffs in O.S. 261 of 1982 after complying with all the legal formalities. The suits O.S. 724 of 1982 and O.S. 193 of 1983 are S.A.867/97 & 209/98. 5 dismissed. The parties in all the suits are directed to bear their respective costs.” 7. The defendants, who suffered a decree in O.S.261 of 1982, and had their suits dismissed carried the matter in appeals, they did not succeed. Hence these Second Appeals. 8. The following questions of law are seen raised in the second appeals: “i) Whether in view of the finding that O.S. 261/82 is barred by res judicata were the courts below justified in granting a decree in O.S. 261/82 and consequently dismissing O.S. 724/82 and 193/83. ii) Whether Ext.A7 delivery Kaychit conclusively established that the entire plaint schedule property was delivered to the predecessor-in-interest of the plaintiffs in O.S. 261/82 and based on that document whether the courts below were right in dismissing O.S. 724/82 and O.S. 193/83. iii) Whether the courts below were justified in ignoring Ext.B8 judgment of the Appellate S.A.867/97 & 209/98. 6 Authority (L.R.) wherein the patta issued to the plaintiffs in O.S. 261/82 was cancelled. iv) Whether there was justification to enter finding that the plaintiff in O.S. 724/82 failed to prove possession of the plaint schedule property.” 9. Learned counsel appearing for the appellants in these appeals raised three points for consideration. They are 1) pleadings in the earlier suit evidenced by Ext.A1 judgment were not produced in the present suits and therefore the plea of res judicata ought not to have been entertained, 2) to the auction purchaser in execution proceedings the entire extent of property involved in these proceedings were not delivered, and 3) purchase certificates have been set aside, so that the plaintiff in O.S. 261 of 1982 cannot rely on them. 10. Learned counsel appearing for the contesting respondents on the other hand pointed out that there is no merit in any of the above contentions. Learned counsel pointed out that there was no contention before the courts below that Ext.A1 judgment cannot be received in evidence S.A.867/97 & 209/98. 7 and the plea of res judicata cannot be raised for want of production of pleadings in the earlier suit. The said contention is taken up for the first time before this court and it is pointed out that the same may not be entertained. Equally unsustainable is the contention based on non- delivery of the entire extent as claimed by the appellant. It has been categorically found in the earlier suit that the entire property sold as per the court auction has been delivered. Even assuming that the order granting purchase certificates have been set aside, that does not help the appellant at all. 11. It cannot be disputed that there was an earlier suit between the parties, i.e. O.S. 98 of 1955, in which the same issues were involved. The said suit went against the appellant herein. It is contended that since the pleadings in the earlier case have not been produced, the plea of res judicata ought not to have been considered by the courts below. In support of his contention, learned counsel appearing for the appellant relied on the decision reported in S.A.867/97 & 209/98. 8 Ramachandra Dagdu Sonavane v. Vithu Hira Mahar ((2009)10 SCC 273). It is also contended that the earlier suit was one for injunction alone and in the present suit the issue of title is involved. Even though it is said that in the earlier suit title was considered, that was only incidental and that title was not substantially or directly in issue in the earlier suit. On that ground also, the plea of res judicata cannot succeed. Merely because the issue of title has been incidentally gone into, will not enable the respondents herein to take the aid of previous judgment in which possession was the sole issue for consideration. 12. It is true that in the decision reported in Ramachandra Dagdu Sonavane v. Vithu Hira Mahar (2009(10) SCC 273) it was held as follows: “To the same effect is the judgment of this Court in Sulochana Amma v. Narayanan Nair in which it has been held that the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res judicata. A plea decided even in S.A.867/97 & 209/98. 9 a suit for injunction touching the title between the same parties would operate as res judicata. The learned Senior Counsel Shri Naphade by placing reliance on the observation made by this Court in Syed Mohd. Salie Labbai v. Mohd. Hajifa that the best method to decide the question of res judicata is first to determine the case of parties as put forward in their respective pleadings of their previous suits and then to find out as to what had been decided by the judgments which operate as res judicata. It is the contention of the learned Senior Counsel that the pleadings of the suit of 1953 were not available to the civil court while deciding the second suit of 1979 and, therefore, the High Court was justified in holding that the finding of the civil court in the second suit of 1979 and the appellate court against that order regarding res judicata cannot be upheld. In Syed Mohd. case, this Court has stated that before a plea of res judicata can be given effect to the four conditions are required to be proved. They are, that the litigating parties must be the same; that the subject-matter of the suit also must be identical; that the matter must S.A.867/97 & 209/98. 10 be finally decided between the parties; and that the suit must be decided by a court of competent jurisdiction. This Court while analysing those conditions as matter of fact found that the parties had not even filed the pleading of the suits instituted by them. In that factual scenario, this Court had to observe that the pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment. It is true that if an earlier judgment has to operate as res judicata in the subsequent proceedings, then all the necessary facts including pleadings of the earlier litigation must be placed on record in the subsequent proceedings. In the judgment and decree in O.S. 2353 of 1979, the trial Jude in extenso has referred to the pleadings of the parties in the earlier suit with reference to the copy of the judgment and decree passed in O.S. No.104 of 1953 which was produced by the appellants along with the other documents and it is only thereafter that the issue regarding adoption of Vithu was one of the issues framed in the 1953 suit and the court after referring to the pleadings of both the parties and the evidence adduced has specifically answered the issue by S.A.867/97 & 209/98. 11 holding that Vithu has failed to prove that he is an adopted son of the deceased watandar. Therefore, we cannot accept the contention of learned Senior Counsel Sri. Shekhar Naphade.” So also in the decision reported in Sreedharan v. Uniiatha (1985 K.L.T. 181) it was held as follows: “The word “substantially” means “of importance and value” and a matter is substantially in issue if it is of importance and value for the decision of the case. To illustrate, an unnecessary or irrelevant issue, the decision of which either way will not affect the decision of suit, cannot be of any importance or value for the decision of the suit and is, therefore, not substantially in issue. Courts have laid down that to constitute a matter directly and substantially in issue, it is not necessary that a distinct issue should have been raised upon it; it is sufficient if the matter was in issue in substance. The point whether a matter was directly and substantially in issue in the former suit is to be decided with reference to the fact, and circumstances of each particular case. It is essentially a question of fact. If the parties and the court considered the matter S.A.867/97 & 209/98. 12 as if it formed a direct and principal issue, it must be taken to have been directly and substantially in issue. It is not possible to formulate any ground rules to decide whether a previous decision regarding title in a suit for injunction does not operate as res judicata in a subsequent suit for recovery of property on the strength of title. The question essentially depends upon the fact whether the issue as to title raised in the subsequent suit was directly and substantially in issue in the former suit and was the ground for the ultimate decision, and this again depends upon the circumstances of each case. Certainly if the issue in regard to title was directly and substantially in issue in the former suit, the finding on it would operate as res judiata if the determination of that issue constituted the stereobate for the ultimate decision. But if it was not in issue at all or was only collaterally and incidentally in issue, it would not so operate. Where for the purpose of deciding the suit for injunction, the question of title has been specifically considered and decided and that formed the principal ground for the ultimate decision, that decision will operate as res judicata S.A.867/97 & 209/98. 13 between the parties. The fact that the former suit could have been decided without reference to the question of title may not be of any importance, when in a given case the suit has been decided solely on the basis of title to the property. In this context it has to be noted that the Supreme Court has held that: “A final decision in any matter at issue between the parties is based by a court on its decisions on more than one point-each of which by itself would be sufficient for the ultimate decision-the decision on each of these points would operate as res judicata between the parties.” A finding which is the real ground of the ultimate decision will operate as res judicata even though there may have been other issues on which the case might equally well have been decided. In other words, where the judgment is based on the findings on two issues one of which by itself is sufficient to sustain the judgment, the decision on both the issues will be res judicata inasmuch as the decision of the suit in such cases must be taken to have rested on the findings on both the issues, each being an additional of supplemental ground to the other for the disposal of the suit. S.A.867/97 & 209/98. 14 In sum, what I understand is that the only determinations which are necessary to the decision-which are fundamental to it and without which it cannot stand-will operate as res judicata. Other determinations, without which it would still be possible for the decision to stand, however definite be the language in which they are expressed, cannot support a plea of res judicata between the parties between whom those determinations were pronounced. I quote an ancient authority-a statement of the principle by Coleridge J. “The judgment concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the ground work of the decision itself, though not then directly the point at issue.” R.V. Harlington, Middle Quarter (inhabitants) (1855) 4E & B 780 at pages 794-95) It is exceedingly difficult to distinguish the matters fundamental or cardinal to the prior decision, necessarily involved in it as its legal justification or foundation, from matters which even though actually raised and decided as being in the S.A.867/97 & 209/98. 15 circumstances of the case the determining considerations; yet are not in point of law the essential foundation or groundwork of the judgment. How to make this essential distinction-I should say in order to delineate this essential distinction, one has always to enquire with unrelenting severity-is the determination of the issue upon which it is sought to found a plea of res judicata, so fundamental to the substantive ultimate decision, that the latter cannot stand without the former. Nothing short of this will do. It is well settled that a mere step in the reasoning of the ultimate decision is insufficient. What is required is no less than the determination of law, or fact or both fundamental to the substantive decision.” So also in the decision reported in Sajjadanshin Sayed v. Musa Dadabhai Ummer ((2000) 3 SCC 350), it was held as follows: “The words “collaterally or incidentally in issue” have come up for interpretation in several common law jurisdictions in the context of the principle of res judicata. While the principle has been accepted that matters collaterally or S.A.867/97 & 209/98. 16 incidentally in issue are not ordinarily res judicata, it has however been accepted that there are exceptions to his rule. The English, American, Australian and Indian courts and jurists have therefore proceeded to lay down certain tests to find out if even an earlier finding on such an issue an be res judicata in a later proceeding. There appears to be a common thread in the tests laid down in all these countries. We shall, therefore, refer to these developments.” 13. It is well settled that in a suit for injunction the question of title does not arise for consideration and the sole issue to be decided is to who is in possession of the property as on the date of the suit. But, if the issue of possession was so interlinked with title, so that an issue regarding title had to be raised and had to be considered and it was in fact so done, then it assumes a different character. In such case, if there was an issue regarding title and the parties had gone for trial fully conscious of the various issues raised in the suit, then after having invited decision against them with regard to title, in the subsequent S.A.867/97 & 209/98. 17 suit they cannot be heard to say that the earlier decision is not res judicata. If on the other hand an issue regarding title is only collateral or incidental to the main issue, and then even if it is decided in the earlier suit, the finding therein would not ordinarily operate as res judicata. In the case on hand, a perusal of Ext.A1 will clearly show that the issue regarding title was agitated, the parties had gone to trial fully conscious of that fact, evidence was adduced and it was found that the appellants had no title to the suit property. True, as laid down in the decision reported in Madhavi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai ((2000) 6 SCC 301) mere finding on an incidental question may not as such constitute res judicata. But if on the other hand as already stated, the issue of possession and title are so interlinked, and it becomes necessary to consider the question of title, then if decided that will be binding on the parties. If on the other hand the decision on the issue of title was only incidental or collateral, neither side can take aid of it in a subsequent proceedings. Both S.A.867/97 & 209/98. 18 the courts below have found that in the earlier suit the issue regarding title was relevant and in fact an issue had been raised regarding title. In the light of the above facts, the contention of the learned counsel for the appellant that the issue of title was not decided in the earlier suit cannot be countenanced. 14. It is not seen from the judgment of the lower court that the contention based on want of production of pleadings in the earlier case for considering the question of res judicata was raised before the court below at all. It is true that in the decision reported in Ramachandra Dagdu Sonavane 's case, it was held that it is necessary to produce the pleadings in the earlier case to put forward a successful plea of res judicata. This is because the court trying the subsequent suit has to ascertain whether on pleadings and materials before the court in the earlier suit, the issue that is stated to be res judiata did in fact arise for consideration. In case where there is a doubt regarding the actual issue involved in the previous suit, it may be S.A.867/97 & 209/98. 19 strictly necessary to scrutinize the pleadings in the said suit. But when it is manifest from the judgment itself that an issue has been raised in that regard, there will be no justification for insisting that the pleadings in the earlier suit must be produced. True, res judicata is a rule of evidence. But there is nothing which prevents the courts from looking into the earlier judgment, to see what were the issues involved in that suit and what are the decisions on those issues. Viewed from that angle, it could be seen that in the earlier case, i.e. O.S. 98 of 1955 the court did raise a question regarding title and found against the appellants herein. Therefore, the contention based on failure of production of pleadings and also that the issue of title was only incidental and collateral in the previous suit cannot be accepted. 15. Equally unsustainable is the contention that after the auction sale the entire property covered by the sale was not delivered. The plaintiff in O.S. 261 of 1982 has produced a delivery kychit dated 5.1.1101 M.E. It clearly S.A.867/97 & 209/98. 20 shows that the entire property had been delivered over to the auction purchaser. In the light of this document, it is for the defendants or in other words the appellant herein to prove that the kychit does not reflect the true state of affairs and the properties were not infact delivered to the auction purchaser. In fact in the previous proceedings, this issue was also considered and the courts, after scrutinizing the materials before it came to the conclusion that delivery was given and the auction purchaser had obtained possession of the property. Therefore, even assuming that the order granting purchase certificates have been set aside, it may not be of much use to the appellant herein. 16. The claim that the appellant was residing in the property was also found against