IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA, 1930 SA.NO. 120 OF 1996(E) --------------------------------- AS.5/1991 OF DISTRICT COURT,THODUPUZHA OS.12/1982 OF SUB COURT,THODUPUZHA .................... APPELLANT(S) -APPELLANT - PLAINTIFF: ------------------------------------------------------- JOHN V.V., S/O.VARGHESE, VAZHAYIL HOUSE, KATTAPPANA P.O., AYYAPPANCOIL VILLAGE. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S) - RESPONDENTS - RESPONDENTS: ------------------------------------------------------------------ 1. SASIDHARAN, S/O.RAMALONGAM ACHARI, ELAVANTHIKKAL HOUSE, KATTAPPANA KARA, AYYAPPANCOIL VILLAGE, UDUMBANCHOLA TALUK. 2. VIJAYAN, S/O. DO. DO. DO. DO. 3. NARAYANAN ACHARI, S/O.VELAYUDHAN ACHARI, DO. DO. DO. 4. RAJAMONY, S/O.PONNAYYA NADAR, KANAKKAPILLIVILA HOUSE, DO. KARA, DO. VILLAGE (DIED) 5. RASSALRAJ, S/O.TLHANKAYYA, ATURUPLAVILA LHOUSE OF DO. DO. 6. YESUDAS, PANDARAVILA HOUSE, DO. KARA, DO. VILLAGE, DO. TALUK. 7. CICILY, W/O. GEORGE, CHERUVATHOOR HOUSE, KATTAPPANA VILLAGE, KATTPPANA P.O., UDUMBANCHOLA TALUK. 8. M.S. KHAJA, S/O. MUHAMMED ALI, PICHA RAWTHER, SAYADU BHAVANAM, ALIYAR STREET, UTHAMAPALAYAM, MADURAI. 9. RAVEENDRAN, S/O. KRISHNAN, VELAMMAVADIYIL HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE. ADDITIONAL RESPONDENTS IMPLEADED: -------------------------------------------------------- 10. RAJAM, W/O.RAJAMONY, KANAKKAPPILLIVILE HOUSE, KALLUKUNNU, KATTAPPANA P.O. 11. RAJANI, D/O.RAJAMONY, DO. DO. DO. 12. SUNIL, S/O.RAJAMONY, DO. DO. 13. SHYNI, D/O.RAJAMONY, DO. DO.F ADDITIONAL RESPONDENTS 1O TO 13 ARE IMPLEADED AS LRS OF DECEASED 4TH RESPONDENT AS PER ORDER DATED 14.8.2007 ON I.A. 1571/05 ADV. SRI.ESM.KABEER THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.3.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.120 of 1996 -------------------------------------- Dated this the 30th day of March, 2009. JUDGMENT This litigation concerned a small strip of land admeasuring 5.55 cents and was initially started by the father of the appellant in the year 1979 by seeking a decree for prohibitory injunction against the respondents herein and a son of his by name Varghese Koshy alleging trespass into the property including that strip of lan. Trial court found that appellant's father failed to prove his title and possession of that strip of land and dismissed the suit. Unrelenting, appellant's father took up the matter in appeal but the appeal met with the same result. Relying on a settlement deed executed by the father, appellant initiated the present litigation for declaration of title, possession and prohibitory injunction with an alternative prayer for recovery of possession. Respondents/defendants resisting the suit on other grounds also set up a plea of res judicata in view of the concluded finding in the earlier litigation. Trial court accepted that plea and dismissed the suit as barred by res judicata. That judgment and decree were confirmed by the first appellate court and hence, this Second Appeal. 2. Substantial questions of law arising for a decision are: (i) Is the decision of the courts below that the suit is barred by res judicata in the light of the judgment in O.S.No.115 of 1979 legal and sustainable in law? SA No.120/1996 2 (ii) Is the issue raised and decided in O.S.No.115 of 1979 direct and identical with the issues raised in the present suit to attract th principle of res judicata? (iii) When the issue decided in the earlier suit is collateral and incidental, unnecessary and irrelevant whether the finding that the principle of res judicata is attracted is legal and valid? (iv) When the court assumes jurisdiction in the earlier suit, which does not possess and enter findings, whether such decision operate as res judicata in the present suit? 3. Short facts necessary for a decision of the above questions are: The suit concerned 5.55 cents of garden land. Appellant/plaintiff claimed that his father (plaintiff in O.S.No.115 of 1979) got patta in respect of a large area including the suit property in L.A.C.No.134 of 1965 and later as per Ext.A1, settlement deed dated 11.6.1979 the father settled the said properties in his favour. The suit property has well defined boundaries, the Kunthalappara - Kattappana road (hereinafter referred as “the said road”) on the west and the thodu on the east. Appellant claimed that he is in possession of the suit property and accordingly laid the suit with an alternative prayer for recovery of possession in case it is found that respondents are in possession thereof. Respondents SA No.120/1996 3 contended that neither the appellant nor his predecessor had any right, title, interest or possession of the suit property and that the suit property is part of of the property owned and possessed by the respondents. Appellant's father, Varghese got 3.65 acres in survey No.19/1 of Ayyappankovil Village. That property is situated on the west of the said road. Out of the said 3.65 acres, appellant's father sold three acres towards the eastern side (ie., on the west of the said road) to the Kattappana Panchayat as per four assignment deeds, copy of which are Exts.B4 to B10. Out of the remaining 65 cents, appellant's father sold four cents to a church and what remained with the appellant's father is only 61 cents which is situated towards the west of the said road. It is specifically contended by the respondents that appellant or his father never had any title, interest or possession of any land on the east of the said road and west of the thodu as scheduled in the plaint. On the east of the road is the 82 cents in survey No.19/1 owned by Varghese Koshy, brother of the appellant (defendant No.7 in O.S.No.115 of 1979). The schedule property is part of the said 82 cents which the respondents (defendant Nos.1 to 6 in O.S.No.115 of 1979) acquired vide six assignment deeds of the year 1979. They also contended that in respect of the suit property, appellant's father had filed O.S.No.115 of 1979 in the Munsiff's Court, Devicolam against the respondents and said Varghese Koshy seeking decree for prohibitory injunction. Holding that appellant's father had no right, title, interest or possession of any property on the SA No.120/1996 4 east of the said road, the suit was dismissed. That dismissal was confirmed in A.S.No.2 of 1981. Hence, the finding in the previous litigation as to title operated as res judicata. 4. Ext.B1 is the copy of the plaint in O.S.No.115 of 1979. Ext.B2 is the copy of the judgment in that case. Ext.B3 is the copy of the judgment in A.S.No.2 of 1981 arising from O.S.No.115 of 1979. It is based on Exts.B1 to B3 that courts below found that the present suit for declaration of title and possession and alternatively for recovery of possession is barred by res judicata. It is contended by the learned counsel for appellant that the decision in the previous litigation as to title was only incidental, was not necessary for a decision of that suit which was merely for injunction and hence, the decision (in O.S.No.115 of 1979) as to title will not operate as res judicata. 5. It is necessary to ascertain whether in the previous litigation, there was any finding as to the title claimed by the appellant's father and if so, that question was directly and substantially in issue in that case. The schedule of Ext.B1, copy of plaint in O.S.No.115 of 1979 shows that appellant's father had claimed title an possession of the property lying in between the road on the west and thodu on the east. The eastern boundary of the property referred to in the schedule of Ext.B1 is the property belonging to Varghese Koshy, brother of the present appellant and defendant No.7 in O.S.No.115 of 1979. It is seen SA No.120/1996 5 from paragraphs 3 and 4 of Ext.B1 that appellant's father (under whom he is claiming right, title, interest and possession) claimed title and possession over the suit property on the east of the said road and west of the thodu as per patta issued by the Special Tahsildar. It is not disputed that the respondents herein and Varghese Koshy as defendant No.7 in O.S.No.115 of 1979 disputed the claim of the appellant's father for title and possession of the property on the east of the road and west of the thodu. Ext.B2, copy of the judgment in O.S.No.115 of 1979 shows that issue No.1 framed in that case was what was the correct extent and boundaries of the property belonging to the appellant's father (plaintiff in O.S.No.115 of 1979). It is also seen from Ext.B2 that the learned Munsiff observed that on the pleadings of the parties, the main dispute centered round the small strip of land lying between the said road on the west and thodu on the east and that to settle the controversy, an issue of that nature (issue No.1) was necessitated. After saying so, learned Munsiff went into the controversy as to right, title and interest of the appellant's father in the disputed property, considered the evidence let in by both sides including Ext.A1 (in that case) which is the patta issued to the appellant's father and Exts.C1 and C2, report and plan prepared by the advocate commissioner with the assistance of the Taluk Surveyor. Learned Munsiff ultimately found that appellant's father (plaintiff in O.S.No.115 of 1979) failed to prove that the property belonging to him as per Ext.A1 in that case extended upto the thodu on the east. It was specifically found that the eastern boundary of the property belonging to the SA No.120/1996 6 appellant's father (plaintiff in O.S.No.115 of 1979) is the said road. Consequent to that finding, the suit was dismissed. Ext.B3 is the copy of the judgment in A.S.No.2 of 1981 arising from Ext.B2 and the decree that followed. In Ext.B3 first appellate court referred to the contentions raised, the documents relied by both sides and stated that the case of the appellant's father (plaintiff in O.S.No.115 of 1979) that he has property upto the thodu on the east is belied by Exts.C1 and C2 (in that case). Accordingly judgment and decree of the trial court were confirmed. Exts.B1 to B3 show that in O.S.No.115 of 1979 appellant's father claimed injunction not merely on the strength of possession but on the strength of his title also specifically referring to Ext.A1 in that case, patta issued in his favour by the Special Tahsildar and claiming the eastern boundary of his property as the thodu and, that in view of the contentions raised by the respondents, it became necessary for learned Munsiff to frame an issue concerning the extent of the property belonging to the appellant's father. It is after giving both sides opportunity to adduce evidence on the issue that learned Munsiff came to the conclusion that the entitlement of the appellant's father as per patta (relied on in this case also) is only upto road on the east and that the property lying between that road on the west and the thodu on the east did not form part of the property belonging to the appellant's father as per the patta. SA No.120/1996 7 6. It is contended that the issue regarding title was not directly or substantially in issue in O.S.No.115 of 1979. It has been held time and again that all findings essential to sustain the decision are also res judicata. In Kumaran v. Raman (1994 (1) KLT 434) this Court held: “............Though in a suit for injunction simpliciter a mere passing reference to the plaintiff's title may not operate as res- judicata to a subsequently instituted suit based on title, the position will not be the same in a case where specific issue has been raised with regard to title on payment of proper court- fees and the Court is called upon to give its finding.” True, Ext.B1 would show that court fee was paid only under Section 27(c) of the Court Fees and Suits Valuation Act but, as stated from Exts.B1 to B3, a finding as to the extent and boundary of the property belonging to the appellant's father was essential for deciding the controversy involved in that case and a specific issue in that regard was also raised, considered and decided. In Krishna Iyer v. Kunnath Chelan Avvokkar (2000 (2) KLT 501) a learned Single Judge of this Court held that even in a suit for damages, if an issue regarding title was raised and considered, that could operate as res judicata in subsequent proceeding. It was observed that, SA No.120/1996 8 “The court understood the point and found that it was essential to decide the dispute regarding title between the parties, to finally adjudicate the quantum of damages claimed by the plaintiff” and hence the finding on title could operate as res judicata in subsequent proceeding between the same parties or between parties under whom they claimed title. The Supreme Court considered the question in Aanaimuthu v. Alagammal (2005(3) KLT Short Note 72 - Case No.84) and held that “In a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises 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 or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata.” SA No.120/1996 9 7. I found from Exts.B1 to B3 that it was essential to decide on the extent and boundary of the property belonging to the appellant's predecessor-in- interest to decide the controversy involved in O.S.No.115 of 1979. That question was thus directly and substantially in issue in the previous litigation, was heard and decided against the appellant's predecessor finally. That finding is binding on the appellant who is claiming right, title and interest under his father. The suit as rightly found by the courts below is barred by res judicata. Answering the substantial questions of law against the appellant, this Second Appeal is dismissed without any order as to costs. THOMAS P.JOSEPH, Judge. cks SA No.120/1996 10 Thomas P.Joseph, J. S.A.No.120 of 1996 JUDGMENT 30th March, 2009.