IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 SA.No. 2 of 1999(A) ---------------------------- AS.92/1990 OF II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM OS.211/1985 OF II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM. .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------------------------ SANTHAMMA, D/O.NARAYANI AMMA, HINDU, AGED 45 YEARS, RESIDING AT T.C.1629, THYCAUD VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.P.SANJAY, SRI.A.PARVATHI MENON. RESPONDENTS-RESPONDENTS-DEFENDANTS: --------------------------------------------------------------------- *1. G. PADMAKUMAR, S/O.GOPALAN, HINDU, AGED 54 YEARS, RESIDING AT HOUSE NO.VAZ 8433, MUKKOM THOPPU, THYCAUD VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. *(DIED) 2. J. OMANAKUTTY, W/O.G. PADMAKUMAR, AGED 42 YEARS, RESIDING AT HOUSE NO.VAZ 8433, MUKKONAM THOPPU, THYCAUD VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT. * THE 2ND RESPONDENT IS RECORDED AS THE LEGAL HEIR OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 11/03/2011 IN I.A.125/2011. BY ADV. SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs SA.No. 2 of 1999(A) ORDER ON C.M.P. NO.342/1999 IN S.A. NO.2/1999 DISMISSED 09/06/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 2 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011. JUDGMENT The disappointed plaintiff in O.S.211 of 1985 before the Additional Munsiff's Court, Thiruvananthapuram is the plaintiff. 2. The suit was one for injunction. The plaintiff and the defendants are neighbours and their properties are separated by boundaries. The plaintiff claimed that the boundary wall was within her property and belonged exclusively to her. The defendants on the other hand contended that it is a party wall and both had equal rights over the same. It appears that the plaintiff raised the height of the wall and instituted a suit against the defendants seeking a permanent prohibitory injunction restraining the defendants from demolishing S.A.2/1999. 2 the wall. In retaliation, the defendants filed a counter claim asserting that it is a party wall and the plaintiff has no unilateral right to increase the height of the wall. 3. On the pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts. A1 to A7 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts.B1 and B2 marked. Ext.C1 is the commission report. 4. On an evaluation of the evidence, the trial court rejected the claim of the plaintiff and accepted the counter claim. Accordingly the suit was dismissed and the counter claim was decreed. 5. The matter was carried in appeal as A.S. 92 of 1990 by the plaintiff. It is understood that initially the appeal was allowed. Thereafter the defendants filed I.A. for review of the judgment and that was allowed and the judgment was reviewed. Thereafter the appeal was dismissed. That brings the plaintiff before this court. S.A.2/1999. 3 6. Notice is seen issued on the following questions of law: “(1) Whether the trial court was correct in taking separate and independent trials of two suits (O.S.211/85 filed by the appellant herein and O.S.602/85 filed by the respondent herein for the same relief claimed by them in the counter claim filed in O.S.211/85 relating to one and the same subject matter of dispute. (2) Whether the lower appellate court ought to have entertained the review petition filed by the respondent (I.A.58933/94) for reviewing the judgment in A.S.92/90 after having lodged an execution petition in O.S.211/85 during the pendency of the appeal by writing NIL in the column in the Execution Petition asking whether any appeal is pending against the suit. (3) Whether the lower appellate court was correct in holding the wall as a party wall in its judgment dated 17.9.1996 bruling aside the finding of the lower appellate court that the wall was situated in the plaintiff's property in its judgment dated 20.0.1994.” S.A.2/1999. 4 During the pendency of this appeal the first defendant died and his legal representatives were brought on record. 7. Learned counsel appearing for the appellant pointed out that even though the mandatory injunction in favour of the defendants has been carried out and the newly constructed portion has been demolished, the right of the plaintiff regarding the boundary wall is not properly determined by the courts below. Learned counsel went on to point out that the definite case of the plaintiff was that the wall belongs exclusively to her since it is situated in her property. Therefore, even if the decree or counter claim has been accepted, the right of the plaintiff to the wall has to be declared. Relying on the oral evidence it was contended that it is clear that the boundary wall was within the property owned and possessed by the defendants, the court below ought not to have dismissed the same. 8. Per contra, learned counsel appearing for the respondents pointed out that the present appeal is barred by S.A.2/1999. 5 the principle of res judicata. It is pointed out that there was a suit and a counter claim. The suit by the plaintiff was dismissed and counter claim was decreed. There was only one appeal before the lower appellate court. That is not sufficient in law. In fact the appeal before the lower appellate court was barred by the principle of res judicata. Even assuming that the lower appellate court, without a separate appeal, considered the matter, before this court also there is no appeal against the decree in counter claim which has been confirmed by the lower appellate court and therefore the present appeal is barred by the principle of res judicata. 9. One may remember that the dispute relates to the right and ownership regarding the compound wall. The plaintiff would allege that the said compound wall was within her property and belonged to her exclusively. According to the defendants, the wall is on the boundary and both the plaintiff and the defendants have equal right over the same. It is not in dispute that the suit for injunction restraining the S.A.2/1999. 6 defendants from demolishing the compound wall was dismissed. It is also not in dispute that the counter claim which raised the contention that it is a common wall to which both parties are entitled to and for a mandatory injunction to demolish the raised portion is decreed. 10. A reading of the lower appellate court judgment does not show that there were two appeals, one against the dismissal of the suit and the other against the decree in the counter claim. However, in paragraph 10 of the lower appellate court judgment it was observed as follows: “The defendants raised a counter claim. The counter claim is to issue a direction to the plaintiff to demolish the portion of the compound wall raised without his consent. It is clear from the decision quoted above that if a common boundary wall is raised without the consent of the adjoining owner, he is entitled to get a mandatory injunction so as to restorer the wall to its original position. So the defendants are entitled to the mandatory injunction prayer. Moreover it is seen S.A.2/1999. 7 from the affidavit in support of I.A.4638/92 that during the pendency of the appeal the decree passed by the trial court was executed and the newly constructed portion was demolished. So at present there is no meaning in granting prohibitory injunction. Practically the appeal has become infructuous. There is no prayer for the plaintiff to amend the plaint and to restore the demolished portion to its original position. Therefore I hold that the plaintiff is not entitled to the prohibitory injunction prayed for. I also hold that the defendants are entitled to the mandatory injunction prayed for.” 11. Whatever that be, there is a decree dismissing the suit of the plaintiff and there is a decree granting mandatory injunction in favour of the defendants. Necessarily two appeals will have to be filed before this court, one against the dismissal of the appeal against the dismissal of the suit and the other from the decree in the counter claim as confirmed by the lower appellate court. The appellant before this court has chosen to file only one S.A.2/1999. 8 appeal, i.e., against the appeal dismissing the suit. There is no appeal against the granting of mandatory injunction. 12. It is well settled that when there is a suit and a counter claim, the aggrieved party has to file two appeals from the respective decrees. In the case on hand since there is no appeal from the counter claim, which was decreed in favour of the defendant accepting the case that it is a party wall to which both the parties are entitled to, the present barred by the principle of res judicata. Apart from the above fact, it is seen from a reading of the judgment of the trial court itself that the decree in the counter claim was executed long ago and the newly constructed portion of the wall has already been demolished and the matter has become infructuous and there is no necessity to go into the questions raised by the appellant, which cannot be considered also in the light of the fact that the present appeal is barred by the principle of res judicata. S.A.2/1999. 9 The result is that this appeal is liable to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.