IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 AS.No. 612 of 2001(C) --------------------- AGAINST THE JUDGMENT AND DECREE DATED 31.7.2001 IN OS.99/1996 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/PLAINTIFF: ------------------------ K.DIVAKARAN PILLAI, S/O. LATE KRISHNA PILLAI, AGED 44, MAMOOTTUVILA VEEDU, MUDAKKAL DESOM, MUDAKKAL VILLAGE. BY ADV. MR.G.S.REGHUNATH RESPONDENT/DEFENDANT: ---------------------------- G.SANTHAKUMARI AMMA, D/O.GOMATHY AMMA, HOUSE WIFE, AGED 47, SURESH NIVAS, MUDAKKAL DESOM, MUDAKKAL VILLAGE. ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 612 of 2001(C) ORDER ON C.M.P.NO.4333/2001 IN A.S.NO.612/2001 DISMISSED. 15.3.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.612 of 2001 --------------------------------- Dated this the 15th day of February, 2010 J U D G M E N T The plaintiff in O.S.No.99 of 1996 on the file of the Sub Court, Attingal, is the appellant. Suit is filed for declaration of title, possession and for consequential injunction. The court below held that the present suit is barred by principle of res judicata and therefore the plaintiff is not entitled to the reliefs sought for in the plaint and the suit was dismissed. Aggrieved by the same, the plaintiff has preferred the appeal. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaint A schedule property is having an extent of 1.85 acres of land in survey No.847/36. Plaint B schedule property is 1.34 acres which includes 1.30 acres registered land and 4 cents of unregistered land. Plaint C schedule property is having an extent of 42.750 cents. Plaint B schedule is the western plot and plaint C schedule property is the eastern plot. Plaint B and C schedule constitute plaint A schedule. It is the case of the parties A.S.No.612 of 2001 2 that plaint A schedule property originally belonged to Gomathy Amma, who is the mother of the defendant. After her death, the defendant and other children of Gomathy Amma entered in to a partition and plaint A schedule property was allotted to three sharers. 45 cents was allotted to one Sivakumar, 70 cents lying on the immediate west to Sasikumar and another 70 cents lying west of the said 70 cents to Syamakumari. Sivakumar sold his eastern plot to the defendant in the suit. Plaintiff purchased the shares of Sasikumar and Syamakumari. The property scheduled in the plaint are patta lands and patta was issued to the plaintiff and defendant under the provisions of the Sreepadam Enfranchisement Land Act, 1959. It is the case of the plaintiff that patta issued is for 1.34 acres 42.750 cents respectively in favour of plaintiff and defendant. 3. It is the case of the plaintiff that the defendant filed O.S.No.298 of 1989 for permanent prohibitory injunction restraining the plaintiff herein from interfering with her possession and enjoyment of the property she obtained from her brother, Sivakumar. The suit was decreed restraining the defendant in that suit namely, the plaintiff herein, from A.S.No.612 of 2001 3 trespassing into the plaint schedule property and further held that the present defendant is in possession of the property. The property scheduled in the said suit is 42.750 cents. It is the C schedule property in this case. It is averred in the plaint that though the relief sought for in the said suit was only in respect of 42.750 cents a decree was passed holding that the dividing line between the properties of the plaintiff and defendant is EH line shown in the plan appended to Ext.B2 decree. The present suit was filed for declaration of title, possession, consequential injunction and for putting up boundary. 4. In the written statement filed by the defendant it is inter alia contended that the suit is barred by res judicata in view of the decree and judgment passed in O.S.No.298 of 1989 on the file of the Sub Court, Attingal. It is contended by the defendant that the suit properties were measured, a plan was prepared, right and possession of the defendant was established in that case and that there is no puthuval land in possession of the plaintiff as claimed. The defendant prayed for dismissal of the suit. A.S.No.612 of 2001 4 5. The parties did not adduce oral evidence. Exts.A1 to A10, B1 to B3, C1 report and C1(a) plan were marked. 6. It is not disputed that plaint A schedule property originally belong to Gomathy Amma. It is also not disputed that the Gomathy Amma's children partitioned the properties after her death. Ext.A1 is the partition deed dated 27.4.1981. In Ext.A1 partition deed the plaint schedule properties were divided. 70 cents each were allotted to Sasikumar and SyamaKumari and 45 cents to Sivakumar. Plaintiff purchased the shares obtained by Syamakumari and Sasikumar. 45 cents allotted to Sivakumar was purchased by the defendant. As per Ext.A1, the extent of the property divided was 70 + 70 + 45 = 1.85 acres. It is the plaintiff's case that though in Ext.A1, the extent of B and C schedule properties are mentioned as 1.40 acres and 45 cents respectively, he has got only 1.34 acres out of which 1.30 acres is registered land and 4 cents unregistered. Similarly, the plaintiff further contended that though 45 cents was allotted to Sivakumar in Ext.A1 partition deed, the extent of property available is 42.750 cents. A.S.No.612 of 2001 5 7. There was a boundary dispute between the parties during the year 1989. The present defendant filed O.S.No.298 of 1989. The judgment in that case is marked as Ext.B1 and Ext.B2 is the certified copy of the decree. Ext.B2 decree shows that the plaint schedule property in O.S.No.298 of 1989 is 42.750 cents. The defendant's case in the said suit is that she is in possession of the plaint schedule property and the plaintiff in the present suit, who is the defendant in that suit is restrained by a decree of injunction from trespassing into any portion of her property. In that case, a commissioner was deputed to measure the plaint schedule property. In the commissioner's report and plan it is reported that the plaint schedule property in the said suit is having an extent of 45.5 cents. The commissioner also reported that the boundary line between the properties of the parties is EH line. The suit was decreed granting a decree for permanent prohibitory injunction restraining the present plaintiff from interfering with the possession and enjoyment of the plaintiff in the said suit, who is the defendant herein. 8. As stated earlier, the defendant's case in the earlier suit is that he has got title and possession in respect of the plaint A.S.No.612 of 2001 6 schedule property. The plaint schedule property in the earlier suit is 42.750 cents. In that case the civil court passed a decree granting the prayer for injunction at the same time holding that the plaintiff is having possession of 45.5 cents of land. In this case, the commissioner submitted a report and plan. Commissioner measured plaint A, B and C schedule properties. In the plan submitted by the commissioner it is reported that the total extent of A schedule property is 1.79 acres and not 1.85 acres. The extent of B schedule property was found to be 1.34 acres and C schedule 45 cents. The three plots are measured and marked. Plaint B schedule property is identified as plot ABCEDFONKLM and C schedule as FGHIJKNO. The commissioner reported that the plaint B schedule property which belongs to the plaintiff is lying on the western side of plaint C schedule property and that there is a permanent boundary in between B and C schedule properties. It is reported that there is a “ ” lying north-south separating the plaint B and C schedule properties. The commissioner also reported that in B schedule property rubber is planted and in C schedule there is coconut cultivation. The commissioner with the help of the Taluk A.S.No.612 of 2001 7 Surveyor measured the entire property claimed by the parties under Ext.A1 partition deed, identified A, B and C schedule properties and demarcated B and C schedule properties. The commissioner also reported that plaint B schedule property having a total extent of 1.34 acres is lying within separate boundary and the C schedule property having an extent of 45 cents is also lying within well defined boundaries. Since two plots belonging to the plaintiff and defendant are lying separately under well defined boundaries, it is reported by the commissioner that there is no necessity for locating the unregistered small portions out of it. Measurements and demarcation of the properties in accordance with the title deeds and on the basis of the demarcating boundaries done by the commissioner was not objected to by either parties. Neither the plaintiff nor the defendant filed any objection to the commission report and plan. So the commission report and plan was accepted. As per the commission report and plan the defendant has got possession and enjoyment of 45 cents and the plaintiff 1.34 acres. Both parties derived title from the very same partition deed. The defendant has 42.750 cents of land which is the plaint schedule A.S.No.612 of 2001 8 property in the earlier suit filed by her. On measurement it is found that she is in possession of 45 cents of land. The plaintiff is not having any objection in the defendant enjoying 45 cents of land as reported by the commissioner and identified in Ext.C1(a) plan. Similarly, the commissioner reported and identified in the plan that the properties claimed by the plaintiff is lying on the western side of C schedule property and the said extent is having 1.34 acres though in the partition deed the extent is marked as 1.40 acres. In Ext.A2 assignment deed also the extent stated to have purchased by the plaintiff is 1.40 acres of land. In the light of the aforesaid facts and reasons, the plaintiff is entitled to a decree of declaration of title and possession on the B schedule property as identified by the commissioner in Ext.C1(a) plan. 9. The court below dismissed the suit finding that the suit is barred by res judicata. The learned Judge had referred to the previous suit between the parties. The court below examined Ext.B1 judgment, Ext.B2 decree, written statement in O.S.No.298 of 1989 filed by the present defendant as the plaintiff. I have already stated that the property scheduled in the said suit is 42.750 cents. The said suit was filed for perpetual injunction. A.S.No.612 of 2001 9 In that case, a commissioner was deputed and he had marked 42.750 cents of property (plaint schedule property in O.S.No.298/1998) of the present defendant and 1.30 acres of the present plaintiff. The scope of the suit was limited to the prayer for granting injunction. The court below formed issues regarding the title of the plaintiff in that suit and the court below found that the plaintiff in that suit is having title over the plaint schedule property. The commissioner in that case demarcated the plaint schedule property as per the plan appended to Ext.B2 decree. In the plan the extent of land demarcated by the commissioner is as per the title deed of the present defendant as 38.800 cents and the adjoining property which is shown as disputed property lying in between the property of the parties as 6.700 cents. The commissioner measured and identified the properties belonging to the plaintiff and defendant in the said suit. The commissioner reported that though the present plaintiff claimed 1.40 acres of land as per the title deed in that suit, the actual extent is 1.36.450 acres. The commissioner also separately shown 6.700 cents as the disputed portion. The civil court in that case held that the plaintiff in that suit is entitled to enjoy 38.800 cents plus A.S.No.612 of 2001 10 6.700 cents identified as part of plaintiff's property. Thus, the plaintiff was given a decree holding that the plaintiff is in possession and enjoyment of 45.5 cents of land. The court below also held that the dividing line between the properties of the plaintiff and defendant is EH line so that the plaintiff is entitled to a decree for 45.5 cents of land which includes 6.700 cents which is separately shown as the disputed portion. 10. The commissioner in this suit on inspection found that there is a well defined mud boundary wall in between the properties of the plaintiff and defendant. The commissioner also reported that the defendant who is the plaintiff in the earlier suit is in possession and enjoyment of the eastern property and the extent is 45 cents. The commissioner also reported that the western property having an extent of 1.34 acres is in the possession and enjoyment of the present plaintiff. Though the earlier suit was for injunction the civil court entered a finding regarding the title of the property and the present defendant got 45.5 cents as per the plan prepared by the commissioner. The court below also taken note of the report of the commissioner in the earlier suit that EH line in the plan is the exact boundary A.S.No.612 of 2001 11 separating the properties of the plaintiff and defendant and the civil court has come to a conclusion that the plaintiff has got title over the property as per the plan shown as EH line. The court below relied on the decision reported in Sulochana Amma v. Narayanan Nair (AIR 1994 SC 152). It was held that in a suit for injunction when the title is in issue, for the purpose of granting injunction that issue directly and substantially arise in that suit between the parties and when the same issue is put in issue in a later suit based on title between the same parties the decree in the injunction suit operates as res judicata. The court below also relied on the decision reported in Sreedharan v. Unniatha (1985 KLT 181) and held that the suit is barred by res judicata. 11. Learned counsel for the respondent brought to the notice of this Court the decisions rendered by the Apex Court in K.Ethirajan (Dead by LRs) v. Lakshmi and others (2003 (10) SCC 578), Gram Panchayath of Naulakha v. Ujagar Singh and others (2000(7)SCC 543), Ramdhar Shrivas v. Bhagwandas (2005(13) SCC 1) and V.Rajeswari v. T.C.Saravana Bava (2004(1) SCC 551) and contended that the A.S.No.612 of 2001 12 matter in issue in this suit is directly and substantially in issue in the earlier suit. I have narrated all the facts and circumstances leading to filing of the earlier suit and the present suit. I also find that the scope and ambit of both suits are entirely different, the subject matter is different and therefore the principles laid down in the said decisions cannot be applied to the facts of this case. 12. I cannot agree with the conclusions arrived by the court below. The earlier suit was a simple suit for injunction simplicitor. The subject matter of the said suit is 42.750 cents of land which admittedly belong to the present defendant, who is the plaintiff in that suit. It is shown that there was an issue regarding the title to the said property. The court held that the plaintiff is having title to the property. No decree was passed declaring the title of the plaintiff. The court examined the title only for the purpose of deciding whether the plaintiff has got possession and enjoyment of the plaint schedule property in that case. The court examined the claim of the plaintiff in that case, perused the title deed and held that the plaintiff in that suit is having title in respect of 42.750 cents of land and that he is in A.S.No.612 of 2001 13 possession of the plaint schedule property. In fact the plaintiff in the present suit did not deny the title of the plaintiff in the earlier suit derived from her brother as per Ext.A1 partition deed. The court below did not examine the scope of the earlier suit. The subject matter of the suit is plaint C schedule property alone, suit for injunction simplicitor and the decree passed is a decree of perpetual injunction. The present suit is for claiming title, possession and for putting up boundary in between the properties of the defendant and plaintiff. In this case, A schedule is the total extent, B schedule is the property belonging to the plaintiff and C schedule is the property belonging to the defendant. The plaintiff sought relief in respect of plaint B schedule property which is not the subject matter of the earlier suit. In the present suit the plaintiff prayed for declaration of title and for putting up boundary on the eastern side of his property. The subject matter of the earlier suit and the subject matter of the present suit are different. In fact, the main prayer and the claim of the plaintiff is for declaration of title over his property which is scheduled in the plaint. The relief claimed in the present suit is in respect of plaint B schedule property which is not the subject matter of the earlier A.S.No.612 of 2001 14 suit. The subject matter of the earlier suit is C schedule property for which no relief is claimed in the present suit. In such circumstances, the finding of the court below that the present suit is barred by res judicata cannot be countenanced at all. The principle of res judicata was wrongly applied and the decisions cited in the judgment were also wrongly applied by the court below. I find that the suit is not barred by res judicata. In fact, there is no dispute regarding the title of the plaintiff which he obtained under Ext.A2 assignment deed. The only dispute is regarding the actual extent of property held by the respective parties. On the basis of the permanent boundary dividing B and C schedule properties, the commissioner reported that C schedule is having 45 cents and B schedule is having 1.34 acres. So long as both sides did not object to the report and plan, the report and plan has to be accepted and the plaintiff is entitled to a decree as prayed for in the suit. The commissioner also identified the dividing line between the properties in Ext.C1(a) plan. The green shaded portion is identified as plaint B scheduled property and the orange shaded portion is identified as plaint C schedule property. The dividing line in between the properties is KNOF. A.S.No.612 of 2001 15 In the result, the decree and judgment passed by the court below is set aside. The plaintiff is given a decree declaring his title and possession over 1.30 acres of registered land and his possession over 4 cents of unregistered land. Thus , the plaintiff is entitled to declaration of title and possession over plaint B schedule property identified by the commissioner in Ext.C1(a) plan as ABCDFONKLM. The plaintiff is allowed to put up a permanent boundary on the line KNOF in Ext.C1(a) plan. The defendant is restrained by a decree of permanent prohibitory injunction from trespassing into and obstructing the plaintiff from enjoying the plaint B schedule property. There will be no order as to costs. Ext.C1(a) plan shall form part of the decree. HARUN-UL-RASHID, JUDGE. bkn/-