IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 SA.No. 641 of 1997(B) ------------------------------- AS.27/1990 of SUB COURT, SULTHAN BATHERY OS.82/1988 of MUNSIFF MAGISTRATE COURT, MANANTHAVADY .................... APPELLANTS:LEGAL REPRESENTATIVES OF 1ST AND 2ND APPELLANT:LEGAL REPRESENTATIVES OF 1ST PLAINTIFF & 2ND PLAINTIFF: ------------------------------------------------------------------------------------------------------------------ 1. MADHAVI V.K. 2. MADHAVI C.K 3. BEENA C.K. 4. REENA C.K. 5. SEENA C.K. 6. SUJITH KUMAR C.K. 7. SINDHU C.K. 8. AJITH C.K. APPELLANTS 2 TO 8 ARE RESIDING AT AJITH NIVAS, 'B' STREET, MANANTHAVADY, WYNAD. 1ST APPELLANT IS RESIDING AT ERUMA THERUVIL, MANANTHAVADY. BY SRI.M.C.SEN, SENIOR ADVOCATE, ADV. SMT.SHAHNA KARTHIKEYAN, SRI.M.P.SREEKRISHNAN, SRI.S.PRAKASH. RESPONDENTS/RESPONDENT/DEFENDANTS: -------------------------------------------------------------------- 1. NADARAJAN, S/O.KARTHIKEYAN, ERUMATHERUVIL AMSOM, MANANTHAVADY. SA.No. 641 of 1997(B) 2. MANIKKOTH RAJAN, S/O.JANAKI, DO. DO. 3. KELERI BHASKARAN, S/O.RAGHAVAN, DO. DO. 4. KELERI PAVITHRAN, S/O.RAGHAVAN, DO. DO. *5. KELERI RAVINDRAN, S/O.RAGHAVAN, DO. DO. *(DIED). 6. KELERI RADHISH, S/O.RAGHAVAN, DO. DO. *ADDL. R7 IMPLEADED ADDL. R7: C.K. SARADHA, W/O.RAGHAVAN, RESIDING AT ERUMATHERUVIL AMSOM, MANANTHAVADY. *LEGAL REPRESENTATIVE OF THE DECEASED R5 IS IMPLEADED AS ADDL. R7, AS PER ORDER DATED 15/03/2001 ON C.MP.NO.347/1998. R1 BY ADV. SRI.K.JAJU BABU R2 TO R4 & R6 BY ADV. SRI.M.C.NAMBIAR THI SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2010,THE COURT ON 02/07/2010 DELIVERED THE FOLLOWING: rs. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 641 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2010. JUDGMENT The plaintiffs, who are non-suited by both the courts below are the appellants. 2. The suit was one for injunction. According to the plaintiffs, the property belongs to the third plaintiff, who obtained it as per a purchase certificate issued from the Land Tribunal concerned. Out of the property she received as per the purchase certificate, she sold 65 cents shown as item No.1 in the plaint to plaintiffs 1 and 2 in the year 1974 and the balance portion is still in her possession. Defendants have no manner of right over the suit property. Some of the children of the third plaintiff had earlier instituted a suit for partition as O.S.71 of 1982. That was dismissed. Appeal taken against the judgment and decree of the lower appellate court was also dismissed. Inspite of the dismissal of the earlier suit, raising the very same S.A. 641/1997. 2 contentions, some other persons have come up to trespass into the property. Therefore the plaintiffs are constrained to approach the court. 3. Defendants 1 to 6 resisted the suit. According to them, the property originally belonged to one Kunhiraman. He died as a bachelor. Therefore his rights devolved on his niece, the third defendant. According to these defendants, the personal law of the parties is Marumakkathayam law. Except the first defendant, others claimed to be co-owners. They say that the assignments made by the third plaintiff are not binding on them. Further, they say that these defendants were not parties to the earlier suit and the decision in that suit is not binding on them. They say that they are also residing in the house situate in the plaint schedule property and no relief can be granted against them. S.A. 641/1997. 3 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A10 from the side of the plaintiffs. The defendants had D.W.1 examined and Exts.B1 to B3 marked. 5. The trial court on an appreciation of the materials came to the conclusion that the parties follow Marumakkathayam Law and if that be so defendants 2 to 6 are co-owners of the properties. Apart from that, it was also found that the defendants are also in possession of the property. Accordingly the suit was dismissed. 6. The plaintiffs carried the matter in appeal as A.S. 27 of 1990. The appellate court concurred with the finding of the trial court that the parties were governed by Marumakkathayam law and the plaintiffs and defendants 2 to 6 are co-owners and accordingly dismissed the appeal. 7. The following questions of law have been raised in the Memorandum of Second Appeal: S.A. 641/1997. 4 “Whether in the facts and circumstances of the case, the parties are governed by the law of Marumakkathayam or they are followers of Makkathayam law? 8. One must remember that this is a suit for injunction simplicitor. The question of possession alone is relevant. Learned counsel appearing for the appellants points out that the judgment and decree in O.S.71 of 1982 as confirmed in A.S. 135 of 1985 operates as res judicata and the suit ought to have been decreed. The contentions raised by the defendants here were raised by the defendants in the earlier suit and were found against. The defendants cannot re-agitate the same issue and the courts below were wrong in holding that the earlier decision is not binding on the defendants in this case. It is contended that the personal law of the parties is Mithakshara Law and that has been omitted to be noticed by the courts below. The lower courts have erred in holding that the parties are governed by Marumakkathayam Law. S.A. 641/1997. 5 9. There is no dispute regarding the fact that at the relevant time Nani was the owner of the property. While the plaintiffs would say that it was she who had acquired the property, according to the defendants, she inherited it from Kunhiraman, who was her uncle. The earlier suit was filed by one of the children of third plaintiff herein claiming partition of the property as O.S.71 of 1982. In that suit the present defendants were not parties and it is evident that in the present suit they are not claiming any rights through the persons who were parties in the partition suit. They set up independent rights. 10. It was unnecessary to go into the question regarding personal law of the parties. As already noticed, the suit was one for injunction simplicitor and all that the court needs to look into was as to who is in possession of the property. The trial court has found that except for the oral evidence of P.W.1 there is nothing to show that the defendants are trying to trespass into the property. It is also found that some of the defendants are residing in the S.A. 641/1997. 6 property and the trial court accepted the documents produced by the defendants. The plaintiffs do not appear to have a case that they are residing in the property. The lower appellate court accepted the finding. It could thus be seen that it could not be said that the defendants have trespassed into the property or they are trying to trespass into the property. Going by the plaintiffs' evidence, it is also evident that they are also residing in the hut. Viewed from this angle, obviously the plaintiffs are not entitled to the reliefs they have sought for. 11. However, it is pointed out by the learned counsel for the appellants that other suits have been filed on the basis of the finding in this suit that the parties are governed by Marumakkathayam law and the finding of the court below in this suit may prejudice the plaintiffs in the other suits. 12. It has already been noticed that it wa unnecessary to decide the personal law of the parties in this suit and so also title to the property. Those questions do not S.A. 641/1997. 7 arise for consideration at all. Having found that the defendants are also in possession of the property, it is unnecessary for the court below to consider the personal law that is applicable to the parties. In the result, while dismissing the appeal and confirming the judgments and decrees of the courts below, the question as to the personal law of the parties and title to suit property are left open for decision in appropriate proceedings. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.