IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 RSA.No. 1186 of 2004() ---------------------- AS.15/2002 of DISTRICT COURT, THRISSUR OS.909/1995 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT ----------------------------- RAMAKRISHNA PADA NAIR, S/O. THEKKADATH KALLIANI AMMA, KADUPPASSRY VILLAGE MUKUNDAPURAM TALUK, NOW RESIDING AT SUDHARMA, KORATTY SOUTH, KUZHAKKUMURY VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.S.MENON RESPONDENT(S): --------------- CHACKO S/O. THEKKAMATH VARAPUZHAKKARAN MATHU, KORATTY DESOM, KIZHAKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. ADV. SRI.N.P.SAMUEL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON 13/01/2011 PASSED THE FOLLOWING: RSA.No. 1186 of 2004() 2 ORDER IN I.A NO.2165/2004 DISMISSED. 13/01/2011 Sd/- S.S.SATHEESACHANDRAN JUDGE P.A To Judge S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1186 OF 2004 -------------------------------- Dated this the 13th day of January 2011 JUDGMENT Defendant is the appellant. Concurrent decision rendered in a suit for recovery of possession in favour of the respondent/ plaintiff is challenged in the appeal. 2. The dispute between the parties pertains to the rival claim made by the parties over a ridge separating their properties, wherein, admittedly, some yielding trees are situate. Previously in respect of the very same issue, there was an earlier suit at the instance of the present appellant seeking a decree of perpetual prohibitory injunction against the respondent restraining him from interfering with his right to take yield from the trees situate in the ridge. That suit was decreed in favour of the appellant and the challenge against that decree by way of an appeal had been turned down. After the decision in the previous suit as between the parties had been sealed with finality, the present suit was laid by the respondent claiming that he has got title over the ridge, which according to him had been trespassed upon and reduced into possession by the defendant/ appellant. He sought for recovery of possession of the ridge from the R.S.A No.1186 OF 2004 - 2 - defendant on the basis of his title. Among other contentions, the determination of the dispute as under the previous suit between the parties was also canvassed by the appellant/ defendant to resist the suit claim as barred by res judicata. The trial court, on the materials placed, was inclined to accept the suit claim canvassed by the plaintiff repelling the contentions put up by the defendant and accordingly, the suit was decreed allowing recovery of possession as prayed for by the plaintiff. As against the decree so granted, the appellant/ defendant preferred an appeal. But, the lower appellate court, after reappreciating the materials tendered, concurring with the conclusion formed by the trial court, dismissed such appeal. Feeling aggrieved, the defendant has preferred this appeal. 2. I heard the counsel on both sides. Claim of title over the suit property having an extent of 40.5 cents, which, according to the plaintiff, takes in the ridge situate on its northern boundary separating the property of the defendant situate further north, is based on Ext.A2 partition deed entered by him with his brother Ouseph. The defendant by transfer got the northern property of Ouseph, alloted to him under Ext.A2 partition deed. The extent of land partitioned as between the sharers under Ext.A2 partition R.S.A No.1186 OF 2004 - 3 - deed was one acre and 46 cents, and by virtue of the partition effected, the plaintiff got 80.5 cents of land and Ouseph, his brother, 64.5 cents of land. Ouseph had conveyed the property obtained under Ext.A2 partition deed in favour of the present defendant under Ext.B1 sale deed of the year 1974. In Ext.B1 sale deed, it has been stated that the ridge situate on the southern side of his property formed part of his property and it had been assigned to the transferee. Plaintiff, the brother of Ouseph, was an attestor to Ext.B1 sale deed. True as an attester, the plaintiff could not be posted with knowledge of the contents of the deed, but, all the same, he was an attester to the sale deed executed by his brother, cannot be blindly ignored of. It is also to be noted that asserting his title and possession over the ridge, the defendant had previously instituted a suit for injunction as O.S No.122/1983 against the present respondent. In that suit, one among the issues cast on the contentions raised was whether he was entitled to the ridge on the southern boundary of his property and the trees situate on it. His claim over the ridge, no doubt, was on the basis of his title obtained from the brother of the plaintiff, Ouseph, under Ext.B1 sale deed. Suit for injunction filed by the appellant was decreed in his favour holding that R.S.A No.1186 OF 2004 - 4 - underExt.B1 he has obtained possession and enjoyment over the ridge. His entitlement to enjoy such property without interference from the defendant (the respondent) by a decree of injunction was upheld. The decree so granted in that suit had been challenged by the respondent in appeal, and it was turned down. Ext.B2 is the judgment and Ext.B3, the decree rendered in the previous suit for injunction in favour of the present appellant. After the decree in that suit had become final and conclusive, it is seen, the respondent had instituted the present suit advancing a case that under the custom prevailing in the locality, the northern and eastern boundaries of a property are to be protected, and, thus enjoyed, by the southern property owner, and as such, he has got possession and enjoyment over the ridge situate on the north of his property. True, he has also canvassed a case as to his claim over such ridge as part of the property alloted to him under Ext.A2 partition deed. The trial court, adverting to the statement, which formed part of Ext.A5 copy of the plaint in the previous suit instituted by the present appellant, which had been relied upon by the respondent to support his case of custom as indicated above, found merit in the case so canvassed. Glancing through Ext.A5 plaint, it is seen, asserting his title and possession R.S.A No.1186 OF 2004 - 5 - over the ridge, the appellant herein, who was the plaintiff in that suit made certain statements, portion of which had been stated in the judgment of the trial court in the present case out of context to base its opinion that in the previous suit, the appellant herein had made some statements that a custom existed as pleaded by the plaintiff in the present suit. What has been culled out and stated in the judgment from Ext.A5would indicate only an assertion of the appellant that his assignor, Ouseph, had put up a ridge in his property when his brother, the respondent, failed to cooperate with him to put up such boundary to separate their properties. There is nothing in the statement supporting any custom as inferred and observed by the trial court. A decree was granted in favour of the respondent for recovery of possession, it is seen, on the basis of the report and plan prepared by the advocate commissioner, which indicated that the appellant has in possession and enjoyment slightly more extent of property (0.42 cent) than what is spelt out by his title deed, Ext.B1. The extent of the land possessed by the respondent as per the measurement was determined lesser than what was claimed. Strangely enough, the claim of the plaintiff over the ridge separating the properties of the parties to the suit asserting that it formed part of the R.S.A No.1186 OF 2004 - 6 - allotment made to him under Ext.A2 partition deed was not examined and determined taking note of the conveyances made by him over such property later, with such documents not even produced to enable the commissioner to identify what is the extent of land remaining with him after such transfer. The case canvassed by the plaintiff as to trespass by the defendant over the ridge to seek recovery of possession on the basis of his title cannot be considered even on its face value in the light of Ext.B3 decree, the suit of which instituted in 1982 was decided in favour of the appellant upholding his title and possession over the ridge. Both courts have misconstrued and misappreciated the facts and circumstances and also the materials tendered in the case and the conclusions drawn by them cannot at all be sustained. Though the previous suit covered by Ext.B3 was only for injunction having regard to the dispute involved in that case, the adjudication made and decision rendered holding that the appellant has title and possession over the ridge, the present suit was clearly barred by res judicata. The decree granted in favour of the respondent in such circumstances is liable to be annulled. R.S.A No.1186 OF 2004 - 7 - 3. In the result, setting aside the decree and judgment rendered in favour of the respondent by the courts below, the appeal is allowed. Suit, O.S No.122/1983 shall stand dismissed. Parties are directed to suffer their costs. S.S.SATHEESACHANDRAN JUDGE vdv “O.S No.122/1983” occurring in the operative portion of the judgment dated 13-01-2011 in R.S.A No.1186/2004 is corrected and substituted as “O.S.No.909/1995” as per order dated 06-07-2011 in R.P No.494/2011 in R.S.A No.1186/2004. Sd/- Registrar (Judicial)