IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 RSA.No.1261 of 2004 (A) ----------------------------- AS.130/2001 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.408/1988 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT (APPELLANT/DEFENDANT): ----------------------------------------------- THOMA OUSEPH, S/O. THOMA, SOURYAMMAKKAL THEKKETHIL, NEDUMKUNNAM KARA AND VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT: (RESPONDENT/1ST PLAINTIFF): -------------------------------------------------------- THOMAS VARGHESE, S/O. THOMA, SOURYAMAKKAL THEKKETHIL, NEDUMKUNNAM KARA AND VILLAGE. ADV. SRI.THOMAS SEBASTIAN SRI.RAJESH THOMAS SRI.K.P.SHAHUL HAMEED SRI.PHILIP T.VARGHESE THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.1261 of 2004 ------------------------------------------------ Dated this the 6th day of March, 2009 JUDGMENT The defendant in O.S.408/1988 on the file of the Munsiff's Court, Changanacherry who has lost his defence concurrently in both the courts below is the appellant in this RSA. The respondent is the plaintiff who is his own younger brother. 2. The suit O.S.408/1988 was filed by the respondent as also Ouseph Thoma/the father of the appellant and the respondent against the appellant for a decree of declaration of title and recovery of possession with mesne profits evicting the appellant who has constructed a hut in the scheduled property and is in residential occupation thereof inter alia on the allegations that the scheduled property is item No.1 property in 'C' schedule to Ext.A1 R. S. A. No.1261 of 2004 -2- Udampady executed by the father/the second plaintiff who is now no more, subject to his life interest. The first plaintiff is in possession and enjoyment of the scheduled property. The defendant acquired right over 'A' schedule property in Ext.A1 and he has disposed of the said property under Ext.A2 sale deed. Thereafter, the defendant has been residing in Lakshamveedu Colony in Nedumkunnam. During 1976, the first plaintiff left for Malabar in connection with his employment and at that time the defendant trespassed into the scheduled property and committed mischiefs therein. Thereupon the first plaintiff filed O.S.10/76 against the defendant for appropriate reliefs. However, during the pendency of the said suit, at the instance of the second plaintiff, the R. S. A. No.1261 of 2004 -3- defendant removed the shed put up by him in the scheduled property and therefore, the plaintiff has not proceeded further with the said suit. Thereafter, the first plaintiff again left for Malabar on 17/04/88 and the defendant again trespassed into the scheduled property and forcibly put up a shed and started residing there. In the circumstances, it has become necessary to have the title of the plaintiffs over the scheduled property declared and the defendant evicted from the scheduled property and recovery of the property is had with mesne profits. A decree of prohibitory injunction restraining the defendant from further trespassing into scheduled property and causing obstructions to the plaintiffs enjoyment thereof is also required. Hence, the suit. R. S. A. No.1261 of 2004 -4- 3. The appellant/defendant filed written statement resisting the suit raising inter alia the following contentions:- The plaintiffs have no cause of auction to file the suit. The suit is barred by res judicata by reason of the decision in O.S.10/1976 on the file of the Munsiff's Court, Changanacherry. The plaint schedule description is incorrect. Plaintiffs have not identified and located the property which was alloted to him as per Ext.A1 Udampady. The first plaintiff has acquired right and interest over 12 cents with the “virivu” attached thereto as per the said Udampady and the plaintiff has filed the suit as if he has got right over the entire “virivu” land. The first plaintiff is not in possession of the entire “virivu”. Plaintiff has to measure out R. S. A. No.1261 of 2004 -5- the entire property deputing a Commissioner to ascertain the total extent of land and to divide the same in proportion to his share and such a plan is necessary for the just disposal of the case. The defendant has not trespassed to any portion of the scheduled property. O.S.10/76 was filed by the first plaintiff on false allegations and the suit was dismissed. It is false to say that the defendant removed the shed put up by him in the scheduled property on the alleged direction of the second plaintiff. It is also incorrect to say that he trespassed into the scheduled property and constructed a shed while plaintiff was away at Malabar. The first plaintiff is entitled only to 12 cents of property and proportionate excess land. The defendant is residing in the building constructed by him in R. S. A. No.1261 of 2004 -6- the excess land (virivu) given to him as per Ext.A1 and the plaintiffs have no right over the excess land under possession of the defendant though no doubt the second plaintiff is having the right to enjoy the property during his life time. The defendant sold only 73 and 7/8 cents of property given to him as per Ext.A1 retaining the entire excess land. He has never resided in Lakshamveedu Colony as alleged. Plaintiffs are not entitled to any relief and the first plaintiff is not having any right over the entire property. The alleged trespass is false. On the above contentions, defendant prayed for dismissal of the suit with costs. 4. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial R. S. A. No.1261 of 2004 -7- which consisted of oral evidence of PWs.1 to 6 and DWs.1 and 2 and documentary evidence Ext.A1 to A10 Exts.C1, C1(a) and Exts.X1 to X10, the trial court decreed the suit declaring the title of the first plaintiff over plot No.2 in Exts.C1(a) plan holding that, that is the plot allotted to him included under 'C' schedule item No.1 under Ext.A1 and allowed him to recover the said property from the possession of the defendant. He was also granted injunction as prayed for. 5. The appellant/defendant being aggrieved by the decree so passed by the trial court filed A.S.130/01 before the first appellate court and the Additional District Judge, Kottayam vide judgment in the said appeal dt.24/01/04 dismissed the said appeal concurring with the findings of the trial R. S. A. No.1261 of 2004 -8- court. Hence, this RSA by the defendant assailing the concurrent verdicts of the courts below. 6. The RSA was admitted on the following substantial questions of law. 1) Has not the lower courts committed grave illegality in decreeing the suit on the ground that the defendant has failed to prove his claim over the scheduled property ? 2) Has not the lower court wrongly and illegally interpreted the documents in accepting Exts.C1 and C1(a) Commission Report and plan ? In the course of arguments I raised the following substantial question of law as well namely; 3) as to whether the suit is barred by res judicata ? R. S. A. No.1261 of 2004 -9- 7. Vehement arguments were advanced by both sides on the substantial question of law formulated as point No.3 above. 8. It is the case of the respondent that the suit will not be barred by res judicata as the trespass committed on the first occasion in 1976 ceased as the appellant vacated the premises removing the shed put up by him for his occupation in the scheduled property on the intervention of their father namely the late second plaintiff in the present suit. As per the pleadings in the plaint the case of the respondent is that in 1976 when he went over to Malabar in connection with his job, the appellant trespassed into the scheduled property and constructed a shed and for recovery of the property from the possession of the appellant/defendant after demolition R. S. A. No.1261 of 2004 -10- and removal of the shed O.S.10/1976 was filed by him and as on the advice of their father who is the second plaintiff in the present suit, the appellant/defendant removed the shed and vacated the premises and therefore, that suit was not pursued and thereafter, in 1988 again when he proceeded to Malabar in connection with his job, the appellant trespassed and put up a shed and began residential occupation therein and that has paved the way for the institution of the present suit. There is absolutely no convincing evidence adduced in the case to show that the appellant/defendant removed the shed which he constructed in the scheduled property in 1976 and vacated the premises as alleged by the plaintiff and that the defendant was subsequently making trespass on R. S. A. No.1261 of 2004 -11- the second occasion and putting up the shed which is now in his residential occupation. The father of the parties who joined institution of the present suit has not been examined. No other convincing evidence was also adduced to establish that the trespass made in 1976 by the defendant was vacated by him by removing the shed on the advice of the second plaintiff. If at all what is so pleaded by the respondent/plaintiff is true, certainly a memo would have been filed in the earlier suit if not a compromise, reporting that the suit is not pursued as the defendant has vacated the premises demolishing and removing the shed put up by him and has surrendered vacant possession of the scheduled property to the plaintiff. The respondent/plaintiff has not produced any evidence to show the manner R. S. A. No.1261 of 2004 -12- in which O.S.10/76 was disposed of by the trial court. 9. Counsel for the appellant/defendant has passed on to me a copy of the decree in O.S.10/76 and that shows that the suit was dismissed on 03/02/77 for default as the plaintiff was absent when the case stood posted for trial in the special list and his counsel reported “no instructions” and that the defendant was present and he pressed for cost and therefore, the suit was being dismissed with cost of the defendant therein who is the present appellant. The above aspect is not disputed before me by the counsel for the respondent. The fact that the defendant was present when the suit was posted for trial in the list and pressed for his costs suggests that the present allegation of the R. S. A. No.1261 of 2004 -13- respondent/plaintiff that the suit was not being pursued as the defendant vacated the premises on the advice of their father is incorrect. It has therefore, to be taken that the appellant/defendant who allegedly trespassed into the scheduled property in 1976 and constructed a shed therein is in residential occupation thereof ever thereafter and that the present suit is instituted on false allegation that he trespassed into the property on a second occasion in April, 1988 and constructed a shed and began residential occupation therein. When the relief sought for by the respondent/plaintiff in O.S.10/1976 is for recovery of property from the appellant/ defendant removing the trespass demolishing the shed constructed by him therein and in the present suit the very same relief is prayed R. S. A. No.1261 of 2004 -14- for, the claim in the present suit will be barred by res judicata unless leave had been obtained and the earlier suit O.S.10/76 was being withdrawn with such leave under Order 23 of the Code of Civil Procedure. 10. On facts also, I have to observe that both the courts below have failed to appreciate the case in the proper perspective. As per Ext.A1, plaintiff was being allotted 12 cents with excess (virivu) from out of a total extent of 25 cents with excess (virivu) included as item No.1 under 'C' schedule as 13 cents with excess was being allotted under 'B' schedule item No.2 to another brother of the appellant and the respondent. Similarly, the appellant/defendant was allotted 73 cents and excess (virivu) with all the improvements therein included under 'A' schedule to Ext.A1. R. S. A. No.1261 of 2004 -15- There is absolutely no evidence furnished on the side of the plaintiff as to what is the extent of the excess (virivu) available. The plaintiff has in the plaint in the suit included altogether an extent of 46 cents and 135 sq. links of property as the plaint schedule property including the excess (virivu) along with the 12 cents allotted to him under 'C' schedule item No.1 from which by implication it can be taken that the case of the plaintiff is that the area of the excess (virivu) is 34.135 cents. Strangely enough, he amended the plaint deleting such description and brought down the description from Ext.A1 as 12 cents with excess (virivu). This shows that plaintiff had absolutely no idea as to what is the excess land available along with the 12 cents that was allotted to him. It is R. S. A. No.1261 of 2004 -16- worthy to note that there is also similar excess in the land allotted to the appellant/ defendant under 'A' schedule to Ext.A1 and also in the land allotted to the brother of the appellant and the respondent under 'B' schedule item No.2 to Ext.A1. 11. It is submitted that the suit was once being dismissed by the trial court and was being remanded by the first appellate court to enable a Commission being taken out and that it is accordingly, that Ext.C1 Commission Report and Ext.C1(a) plan was got down. Here again, it is seen that by that time the resurvey had become final and the scheduled property is assigned resurvey No.214/2 and the properties come within block No.17 of Nedumkunnam Village. The Commissioner has located the property scheduled to the R. S. A. No.1261 of 2004 -17- plaint as claimed by the respondent/plaintiff as property comprised in resurvey No.214/2 in block No.17 of Nedumkunnam village having a total extent of 21.60 ares which will be more than 53 cents in extent. It appears that the plaint was amended by the plaintiff in the hope that his claim need not be limited to 46.13 cents when it was found that property in resurvey No.214/2 is having a total extent of 21.60 ares (more than 53 cents). The Commissioner has reported that the shed constructed by the appellant/defendant is within the said property. Commissioner has categorically reported that he was unable to ascertain the total excess land that was in the possession of the father of the parties. The description of the properties in Ext.A1 under various schedules show that portions of R. S. A. No.1261 of 2004 -18- excess land was there in the properties allotted to the appellant to the respondent and to one of their brothers. 12. The contention of the respondent/ plaintiff is that the appellant has sold the entire property allotted to him under Ext.A2 and he has no property remaining in his possession. The argument is advanced on the basis of Ext.A2 sale deed executed by the appellant/defendant and his parents. It is seen from Ext.A2 that what is sold thereunder is only 73 and 7/8 cents and not the excess (virivu) thereto which was allotted to his share included under 'A' schedule in Ext.A1. According to the appellant/defendant, the excess land allotted to him under 'A' schedule was retained in his possession and he sold only the 73 and 7/8 cents under Ext.A2 and it R. S. A. No.1261 of 2004 -19- is in the said excess land that was available as allotted to him under Ext.A1 that he has put up the shed for his residential occupation. The circumstances show that the plaintiff was advancing claim to the entire excess land in that locality which his father allotted separately under various schedules to his sons under Ext.A1 taking advantage of the fact that the appellant/defendant sold 73 and 7/8 cents though excluding the excess land obtained by him under Ext.A1 vide Ext.A2. Ext.X5 shows that properties comprised in resurvey Nos.214/1, 214/2 and 214/4 having respectively extents of 53.60 ares, 21.60 ares and 28.40 ares stood in the name of Ouseph Thoma/the father of the appellant and the respondent under Thandapper Account No.848. Ext.X10 shows that on the application R. S. A. No.1261 of 2004 -20- of the appellant, property in resurvey No.214/2 was ordered to be brought under Thandapper Account of the appellant and Ext.X8 shows that the entire 21.60 ares comprised in resurvey No.214/2 was accordingly being brought under Thandapper Account No.2110 in the name of the appellant and 28.40 ares of land comprised in resurvey No.214/4 has been brought under Thandapper Account No.2397 in the name of the respondent/plaintiff and that the mutation so effected under Exts.X8 and X4 were from property held by Ouseph Thoma/the father of the appellant and the respondent under Thandapper Account No.848 evidenced from Ext.X5. The transfer from Thandapper Account of Ouseph Thoma in favour of Thandapper accounts of appellant and the respondent on resurvey and transfer of registry is as per R. S. A. No.1261 of 2004 -21- allotment made under Ext.A1 by late father of the appellant and the respondent/plaintiff and the respondent/plaintiff has absolutely no right over any portion of land comprised in resurvey No.214/2 which stands registered under Thandapper Account of the appellant/ defendant as evidenced from Exts.X5, X10 and Ext.X8. The property allotted to the respondent/plaintiff on resurvey is assigned resurvey No.214/4 having an extent of 28.40 cents including the excess as seen from Ext.X4. In the circumstances, the decree passed by the courts below in favour of the respondent/plaintiff with respect to plot No.2 comprised in resurvey No.214/2 of Nedumkunnam village shown as plot “F,1,G,15,17,16,F” in Ext.C1(a) plan as being the property allotted to the plaintiff as item No.1 under 'C' R. S. A. No.1261 of 2004 -22- schedule to Ext.A1 is wrong and that in fact is the excess land comprised in resurvey No.214/2 which stands registered in the name of the appellant/defendant. The courts below committed grave illegality in decreeing the suit when the plaintiff has not established his claim over property comprised in resurvey No.214/2 of Nedumkunnam village as property obtained by him under 'C' schedule item No.1 in Ext.A1. Exts.C1 and C1(a) accepted by the courts below as enabling to identify the suit property belonging to the respondent/plaintiff is wrong, illegal and without understanding the facts of the case in the proper perspective. Further, the claim of the respondent/plaintiff was barred also by res judicata. For all these reasons, I reverse the decree passed by the courts below concurrently R. S. A. No.1261 of 2004 -23- in favour of the respondent/plaintiff and dismiss O.S.408/88 on the file of the Munsiff's Court, Changanacherry allowing this RSA. Parties to suffer their own costs. K.P.BALACHANDRAN, JUDGE kns/-