IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 SA.NO. 556 OF 1996(G) --------------------- {IN AS.85/1989 OF THE DISTRICT COURT, THRISSUR IN OS.12/1979 OF THE MUNSIFF'S COURT, VADAKKANCHERRY} .................... APPELLANT(S)/APPELLANT/PLAINTIFF: BHASKARAN S/O.KUNNATHULLY KARAPPAN, * DIED PERUMANNU DESOM, KECHERY ANGADI, ERANELLUR VILLAGE, TALAPPILLY TALUK. LRS OF DECEASED SOLE APPELLANT IMPLEADED: ADDITIONAL APPELLANTS: 2. LAKSHMI, W/O. LATE BHASKARAN, KUNNATHULLY KARAPPAN, PERUMANNU DESOM, KECHERY ANGADI, ERANELLUR VILLAGE, TALAPPILLY TALUK. 3. BEENA, D/O LATE BHASKARAN 4. NISHA, D/O. LATE BHASKARAN 5. SUNIL, S/O. LATE BHASKARAN ADDITIONAL APPELLANTS 2 TO 5 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT AS PER ORDER DTD. 27.7.09 IN IA 1651/09. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ----------------------------------------------------- 1. MUHAMMED, S/O.ANTHUPARAMBIL, KUNHIMOOSA, KECHERI ANGADI, PERUMMANNU DESOM, ERANELLUR VILLAGE, TALAPPILLY TALUK. SA.NO. 556 OF 1996 :: 2 :: 2. KUNHU, S/O.VALIYAKATH MUHAMMED, DO. DO. 3. ABUBACKER, S/O. DO. DO. 4. HASSANAR, S/O.KARYAKKATT, KUNHUMON, DO. DO. 5. AMMUKUTTY, D/O.KUNNATHULLY, * KARAPPAN, DO. DO. 6. BALAN, S/O. DO. THE NAME OF THE 5TH RESPONDENT IS DELETED AS PER ORDER DATED 20.12.06 IN I.A.2808/2006. R1 BY ADV. SRI.AVM.SALAHUDIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- S.A.No.556 of 1996 --------------------------------------- Dated this the 29h day of September, 2010 JUDGMENT Plaintiff is the appellant. Suit was one for recovery of possession and for mandatory injunction. Both the courts below have concurrently found that the plaintiff is not entitled to the reliefs canvassed for, and accordingly he was non-suited. 2. The case of the plaintiff in a nut shell is that plaint A, B and C schedules originally belonged to the family of one Mekkattukulangara Porinchu and others, and under A1 partition deed A schedule was allotted to one Lonakutty and 5 others. Plaintiff contended that B and C schedules are portions of plaint A schedule property. By way of subsequent assignments from the persons who got right over A schedule property, A schedule property devolved upon the mother of the plaintiff and, S.A.No.556 of 1996 :: 2 :: later, it was partitioned by the plaintiff and his sisters defendants 5 and 6. The case of the plaintiff is that B schedule is a courtyard forming part of A schedule and the 1st defendant, who by way of assignments got a shop room, described as C schedule, unauthorisedly put up a lean-to in B schedule. There is a restrictive provision in A1 partition prohibiting construction of any structure in B schedule, and the 1st defendant, whatever be the right he had obtained over C schedule, was incompetent and more so, not at all entitled to put up any lean- to in B schedule, was the case of the plaintiff. Plaintiff, therefore, sought for a declaration that the persons who have got assignment of A schedule alone have right over that property, and for a mandatory injunction for removal of the lean-to put up in B schedule by the 1st defendant. S.A.No.556 of 1996 :: 3 :: 3. 1st defendant alone resisted the suit contending that he has every right to put up the lean-to. He also disputed the title claimed by the plaintiff and others who claimed of having got right over the same by virtue of the assignments effected by the sharers under A1 partition deed. He contended that he had Kanam right over B schedule and that had matured into full title. At any rate, the plaintiff has no right to obtain any declaration over A schedule and for mandatory injunction in respect of B schedule was the case of the 1st defendant. Defendants 2 to 6 remained ex parte. 4. On the materials placed, the trial court found that the claim raised by the plaintiff/appellant in respect of A schedule property was, in fact, barred by the principles of res judicata as the 6th defendant, his brother (plaintiff) setting up almost identical case S.A.No.556 of 1996 :: 4 :: sought for the very same relief against the 1st defendant, and that was negatived, though challenged up to the second appeal before this court. All the three courts have concurrently negatived the claim earlier canvassed by the 6th defendant in the present suit, the brother of the plaintiff, which he had set up as a common right available to him and also the present plaintiff and 5th defendant, as borne out by B9, B10, B11 and B14, was taken note of by the trial court to conclude that, though the present appellant/plaintiff was not a party to that suit, still the principles of constructive res judicata debarred him from agitating the claim afresh in the present suit. The trial court also found merit in the case set up by the 1st defendant that he has prescribed title by adverse possession over B schedule. The evidence let in by the plaintiff, when examined as PW.1, S.A.No.556 of 1996 :: 5 :: in which he practically conceded that he had no possession over B schedule, coupled with the other materials tendered in the case which disclosed that the restrictive covenant incorporated in A1 partition deed prohibiting putting up of structures in the courtyard referred to it was concluded, was applicable only to the sharers under that deed and not to others. The trial court also found that the property, the courtyard in which the 1st defendant put up a lean-to, was situate to the south-west of the courtyard referred to in the partition deed to which alone the restrictive covenant as against the sharers was made applicable under the deed. In that view of the matter, the trial court concluded that the plaintiff has absolutely no right to claim any right over the courtyard in which the 1st defendant had put up the lean-to, or seek any S.A.No.556 of 1996 :: 6 :: decree for mandatory injunction to remove the lean-to from the courtyard. The dismissal of the suit rendered by the trial court was challenged by the plaintiff preferring an appeal before the lower appellate court which, after re- appreciation of the materials tendered, found that no interference was called for. The lower appellate court, after re-appreciating the evidence with reference to the pleadings and materials, found that the finding entered by the trial court over adverse possession was quite unwarranted, where it formed a conclusion that the plaintiff has no title at all, and the case of the 1st defendant that he had title over the property was more probable. However, as the plaintiff failed to make out any case for the reliefs canvassed for, and further, his claim set up was found to be barred by the principles of constructive res judicata, as held by the S.A.No.556 of 1996 :: 7 :: trial court, the lower appellate court found that the dismissal of the suit is only to be confirmed. Challenging the two decisions rendered by the two courts, the plaintiff has preferred this appeal. 5. Learned counsel for the appellant/ plaintiff submitted that though steps were taken to identify the property through an advocate commissioner by having a survey commission, the commissioner had reported that the property was not identifiable. It is submitted that an opportunity has to be extended to the plaintiff setting aside the judgment to identify the property with reference to the survey records. In the nature of the dispute involved, which arose for adjudication in the case, both the courts went wrong in non-suiting the plaintiff without giving him an opportunity to identity the plaint property where the commission S.A.No.556 of 1996 :: 8 :: appointed by the court expressed its inability to identify the property. Why the property could not be identified was not a matter which was gone into and examined by the court below, and as such no merit can be given to the statement made by the commissioner that it was not identifiable, according to the counsel. Since the rights over an immovable property is canvassed for, it was for the court to take every step to assist the party to have a proper identification of the subject matter for resolving the controversy in the suit is the further submission of the counsel. 6. After going through the judgment of the lower appellate court, I find, the appellant/plaintiff has canvassed for a remission to the trial court almost making similar submissions, but they were turned down. Whether the plaintiff/appellant is justified in S.A.No.556 of 1996 :: 9 :: seeking the reliefs is the primary question, and the lacuna in the judgment of the trial court or the lower appellate court in not going into the question whether the conclusion drawn by the commissioner that the property was identifiable is acceptable or not. 7. It is not disputed before me that the 6th defendant, the brother of the plaintiff, had previously instituted a suit canvassing identical reliefs raised in the present suit, and that too, alleging that he had a common right along with his sisters, defendants 1 and 5 in that suit. As already indicated that claim taken up to this court had been found to be meritless and was negatived. The observation made by the lower appellate court that, the present suit, which had been instituted after the dismissal of the second appeal rendered against the dismissal of the previous suit by S.A.No.556 of 1996 :: 10 :: the 6th defendant, is an attempt by the 6th defendant to rake up the issue again and prolong the litigation as an experimental venture cannot be found fault with. The evidence of the plaintiff, as PW.1, wherein he has unequivocally stated that whatever documents he produced in the case were obtained from his brother 6th defendant, the shop room included in A schedule belonged to his brother and the shop room enjoyed by the contesting 1st defendant was not part of A schedule, was more than sufficient to form irresistible conclusion that neither the plaintiff nor his brother or sisters had any right over C schedule or the courtyard adjoining thereto in which the 1st defendant had put up the lean-to which was sought to be removed by a decree of mandatory injunction in the suit. When such be the case, I find, the request for remission to have an identification of the S.A.No.556 of 1996 :: 11 :: property by deputing a commissioner again, as rightly held by the lower appellate court, is nothing but a dubious attempt to continue with the frivolous litigation. Appeal is devoid of any merit and is dismissed, directing both sides to suffer their costs. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//