Devarajan and Santhakumari v. Asok Kumar and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936** ## **RP.No. 453 of 2014 ()** **----------------------------AGAINST THE JUDGMENT DATED 26-03-2014 IN RSA NO.455/2005.** **.......** ## **PETITIONERS/APPELLANTS:** **------------------------------------------** ## **1. DEVARAJAN, S/O. KUNJULI,** - **NEDIYAVILA VADAKKEMURI VEEDU, POOTHAKULAM CHERRY AND VILLAGE, KOLLAM.** ## **2. SANTHAKUMARI, D/O. KAMALAKSHY,** **NEDIYAVILA VADAKKEMURI VEEDU, POOTHAKULAM CHERRY, POOTHAKULAM VILLAGE, KOLLAM DISTRICT.** **BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE ADVS.SAJEEV DEVARAJAN, SRI.SAJU.S.A, SMT.MEENA.A.** ## **RESPONDENTS/RESPONDENTS:** **------------------------------------------------** ## **1. ASOK KUMAR, S/O. DAMANAN, PUTHENVEEDU, MULLARAMKOTTU DESOM, OTTOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 001.** ## **2. LATHIKA,** **D/O. SAROJINI, MOOZHIYATTIL, MANAMBUR, THIRUVANANTHAPURAM DISTRICT-695 611.** ## **3. SAJEEVAN,** **S/O. DAMANAN, PUTHENVEEDU, MULLARAMKOTTU DESOM, OTTOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 001.** ## **4. SUNILKUMAR,** **S/O. DAMANAN, PUHENVEEDU, MULLARAMKOTTU DESOM, OTTOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT-695 001.** **BY ADV. SRI.B.SURESH KUMAR.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 31/07/2014, ALONG WITH RP. NO.464 OF 2014 AND RP. NO. 474 OF 2014, THE COURT ON 18/08/2014 PASSED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.P. No. 453 of 2014 in R.S.A. No. 455 of 2005, R.P. No. 464 of 2014 in R.S.A. No. 492 of 2005 & R.P. No. 474 of 2014 in R.S.A. No. 422 of 2005. - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of August, 2014. ## **ORDER** R.P. No. 453 of 2014 is directed against the judgment in R.S.A No. 455 of 2005 which arose out of A.S. No. 129 of 1999 against the judgment and decree in O.S. No. 13 of 1998. R.P. No.464 of 2014 is against the judgment in R.S.A. 492 of 2005 which arose out of A.S. No. 127 of 1999 against the judgment and decree in O.S. 155 of 1996. R.P. No. 474 of 2014 is against the judgment in R.S.A. No. 422 of 2005, which arose out of A.S. No. 126 of 1999 against the judgment and decree in O.S. 594 of 1991. 2. Three suits, namely, O.S. Nos. 594 of 1991, 155 of 1996 and 13 of 1998 were jointly tried and disposed of by a common judgment by the Munsiff-Magistrate Court, Paravoor. R.Ps. 453, 464 & 474/2014. 2 O.S. 594 of 1991 was a suit for fixation of northern boundary of A schedule property which is also the southern boundary of B schedule property and for injunction. Plaint A schedule property is alleged to belong to the plaintiff in the suit and B schedule to the defendants. Defendants 1 to 4 in O.S.594 of 1991in turn laid O.S. 155 of 1996 for setting aside Exts. A3 and A8 documents by which the husband of the plaintiff in O.S.594 of 1991 obtained rights over 7.5 cents shown as A schedule in the said suit and also for partition and other reliefs. The plaintiff in O.S. No. 594 of 1991 and her husband are the defendants in O.S.155 of 1996. O.S. No.13 of 1998 was laid by the first plaintiff in O.S. No. 155 of 1996 and others which is a mere suit for injunction directed against the plaintiff in O.S.594 of 1991. The property in respect of which relief was sought for in O.S.594 of 1991 infact belonged to one Devarajan who was employed abroad and on whose behalf the suit was laid by his wife. the power of attorney holder. R.Ps. 453, 464 & 474/2014. 3 3. In order to understand the controversy in these review petitions, it may be necessary to refer to certain facts. 4. The properties involved in all these suits consisting of 15 cents and 16 cents originally belonged to Narayani, the fifth defendant in O.S. 594 of 1991. It appears that during the pendency of the suit Narayani died. 5 cents situate on the north-eastern side of 15 and 16 cents exclusively belonged to Devarajan, son of Narayani . By Ext.B1 dated 4.6.1976 Narayani gifted 15 cents to defendants 1 and 2 in O.S.594 of 1991 who are the children of Sarojini, the predeceased daughter of Narayani. By Ext.A8 dated 27.1.1987 Narayani cancelled Ext.B1 document and by a document of even date executed another gift deed gifting 7.5 cents to Devarajan whose wife instituted O.S. 594 of 1991 and the other 7.5 cents to defendants 1 to 4 in the suit. The northern 7.5 cents were gifted to defendants 1 to 4 and the southern 7.5 cents to Devarajan as per Ext.A3 document. The property R.Ps. 453, 464 & 474/2014. 4 gifted to Devarajan is plaint A schedule property in O.S. 594 of 1991 and the property gifted to defendants 1 to 4 are B schedule property. The plaintiff in O.S.594 of 1991, the wife of Devarajan, on the basis of the power of attorney, laid the suit and sought for fixation of boundary between the properties allotted to two sets of persons under Ext.A3 document. 5. Defendants 1 and 2 in O.S.594 of 1991 apart from resisting the suit also filed a counter claim. In the counter claim, they sought for a declaration that plaint A and B schedule properties belonged absolutely to them and seeking recovery of possession of the building in the property which they alleged, was trespassed upon and taken possession of by the plaintiff in the suit. They also sought for fixation of the southern boundary of the 15 cents covered by Ext.B1 document. Defendants 3 and 4 in O.S.594 of 1991 who were the children of the fifth defendant were represented by a court R.Ps. 453, 464 & 474/2014. 5 guardian who confined to resisting the suit on behalf of the minors did not seek to file counter claim like defendants 1 and 2. 6. In O.S. 155 of 1996 the plaintiffs who are defendants 1 to 4 in O.S.594 of 1991 sought for cancellation of Exts.A3 and A8 documents said to have been executed by late Narayani. In addition to the said declaration, they also sought for partition of 16 cents left behind by Narayani and allocation of ½ share to them. 7. In O.S.13 of 1998, the plaintiffs who are defendants 1 to 4 in O.S. 594 of 1991 sought for injunction restraining the defendants, i.e., the plaintiff is O.S. 594 of 1991 and her husband from trespassing into the plaint schedule property and putting up structures thereon. 8. As already noticed, all the three suits were tried together and O.S.594 of 1991 was treated as the leading case. The evidence consists of the testimony of P.Ws.1 to 4 and R.Ps. 453, 464 & 474/2014. 6 exhibits marked as Exts. A1 to A8 from the side of the plaintiff. The defendants had D.W.1 examined and Exts. B1 to B7 marked. Exts.C1 to C3 are the commission reports and plans. 9. On evaluation of the evidence, the trial court dismissed O.S. No. 594 of 1991 and decreed the counter claim in the said suit. Likewise, O.S. No. 155 of 1996 was also decreed and so also O.S. No. 13 of 1998. To be more precise, the decree passed by the trial court reads as follows: “Issue No.6 in O.S. 594/91 and Issue Nos. 1 and 2 in O.S. 155/96 and Issue No. 1 in O.S.13/98. In the light of my finding on issue Nos. 1 to 5 in O.S. 594/91 the defendants are are entitled to get a decree of declaration and injunction as prayed for. Issues found accordingly. Issue Nos. 3 and 4 in O.S.155/96. The contention of the defendants is that deceased Narayani acquired 16 cents of land as per Ext. B6 which was in her exclusive possession till her death. Since the defendants are the children of deceased Sarojini who was the daughter of R.Ps. 453, 464 & 474/2014. 7 Narayani the defendants are also entitled to succeed the estate of deceased Narayani. It is not disputed that deceased Narayani had only two children viz., the D1 and deceased Sarojini. The fact that the defendants are the legal representatives of deceased Sarojini is not in dispute. Therefore, the defendants are entitled to get ½ shares, from the property got by deceased Narayani as per Ext. B6. Issues found accordingly. Issue No.1 in O.S. 13/98:- The contention of the defendants is that the plaintiffs have trespassed into property covered by Ext. B1 to an extent of 1.7 mts. The Commissioner deputed from court has also reported that there is an encroachment of 1.7 mts. into the property covered by Ext.B1. As already said the plaintiffs have no right over this property and as such the defendants are entitled to get this portion recovered from the plaintiffs and get an injunction restraining the plaintiffs from trespassing into that portion. Issue found accordingly. Issue No. 7 in O.S. 594/91. Issue No. 5 in O.S. 155/96 and Issue No. 2 in O.S.13/98:- See decreetal portion. In the result O.S. 594/91 is dismissed. O.S. 155/96 is decreed. It is hereby declared that Exts. A3 and A8 are null and void. The plaint B schedule R.Ps. 453, 464 & 474/2014. 8 property therein will be partitioned into two equal shares and one such share will be allotted to the plaintiff therein. The plaintiff will be at liberty to apply for a final decree for partition within two months from the date of this decree. The defendants are also allowed to recover possession of the encroached portion as reported by the commissioner as per Ext.C1. O.S.13/1998 is decreed as prayed for. The defendants therein are hereby restrained from trespassing into the plaint schedule properties and constructing any structure or committing any mischief therein.” Three appeals were filed by the plaintiff in O.S.594 of 1991 against the judgment and decree against her in the three suits. The appellate court after independent evaluation of the evidence concurred with the trial court and dismissed all the appeals. However, finding an error in the decree in O.S. 13 of 1998, the lower appellate court modified the decree to one of recovery of possession of C schedule as shown in Ext.C1 plan in O.S. 594 of 1991. R.Ps. 453, 464 & 474/2014. 9 10. The disappointed plaintiff in O.S. 594 of 1991 who lost before the lower appellate court also came up before this Court with three appeals against the decrees passed against them. 11. Before this Court, apart from the contentions that were raised before the lower appellate court, the appellants also raised a contention that going by the wording of the decree of the trial court, it could be seen that even though the body of the judgment would indicate that the counter claim was allowed, there was no decree as far as the counter claim preferred by defendants 1 and 2 was concerned. To be more precise, the contention was that the recovery of possession sought for in the counter claim in O.S. 594 of 1991was not granted by the decree. Considering the above contention, this Court while disposing of the appeals observed as follows: R.Ps. 453, 464 & 474/2014. 10 “32. It is also profitable to note that O.S. 594/1991 which was the suit filed by the appellants herein was dismissed. The suit O.S.155/1995 and O.S. 13/1998 filed by one of the respondents were decreed by the trial court. That decree includes a decree for injunction against the appellants from trespassing into the plaint A schedule property. It was found that B schedule property which was an extent of 16 cents of land lying to the west of A schedule property is available for partition. Therefore, it cannot be said that there was denial of any relief or claim made by the respondents herein so as to contend that the respondents should have filed appeal against the alleged rejection of the claim for recovery of possession. Since a decree for injunction was passed, it must be held that the respondents therein were actually in possession of the property. It appears, it was because a decree for injunction was granted, no decree for recovery of possession was passed. Therefore, the contention that because no appeal was filed challenging the rejection of the claim for recovery of possession sought as per the counter claim filed in O.S. 594/1991, the respondents are barred by the principles of res judicata from putting forth their claim is found to be untenable. R.Ps. 453, 464 & 474/2014. 11 ....... ....... 34. O.S. 155/1996 was filed by the respondents herein for declaration of title based on Ext.B1 gift deed which was found to be accepted and acted upon by the donees. There is a further claim for partition of 16 cents of land lying to the west of the property covered by Ext.B1. That was found to be partible. Hence the declaration granted ion respect of the A schedule property and the preliminary decree for partition passed in favour of the B schedule property therein were rightly confirmed by the appellate court. But the decree for recovery of possession of the green shaded plot measuring 1.70 metres granted in O.S. 155/1996 is set aside. Only to that extent R.S.A. 492/2005 is allowed and in all other respects, R.S.A. 492/2005 is dismissed.” In these review petitions, the learned Senior Counsel Shri.T.Krishnanunni contended that there is a factual error in the judgment of this Court resulting in miscarriage of justice and the finding entered into by this Court cannot have support in law. The learned Senior Counsel went on to point out that this Court went on the presumption that an injunction R.Ps. 453, 464 & 474/2014. 12 acknowledging the possession of the defendants in O.S. 594 of 1991 had been granted by the courts and therefore this Court held that the mere fact that recovery of possession was not given did not matter as defendants were found to be in possession of the property. Learned Senior Counsel went on to point out that on going through the decree of the trial court, it will not indicate that any such injunction has been granted in favour of defendants 1 and 2 in O.S. 594 of 1991. Elaborating on the issue, learned Senior Counsel went on to point out that in short the recovery of possession sought for in the counter claim in O.S. 594 of 1991 though is covered by the judgment is not granted as per the decree and since appeal is against the judgment, it could not be said that the defendants in O.S. 594 of 1991 were entitled to recovery of possession. The further contention is that going by Section 11 Explanation V, which reads as follows: 13 R.Ps. 453, 464 & 474/2014. “Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.” since no recovery of possession is granted by the decree, it should be deemed to have been refused. In which case, that portion of the denial of relief acts as res judicata as far as defendants in the suit are concerned. 12. Learned Senior Counsel went on to point out that even assuming that reliefs were granted by the judgment in the respective suits in favour of defendants 1 and 2 in O.S. 594 of 1991, so long as the decree does not indicate the reliefs granted, that relief which is not covered by the decree should be presumed to have been refused by the trial court. This aspect has been lost sight of while disposing of the appeal by this Court and this Court fell into an error in assuming that since there is an injunction granted by the trial court against the plaintiffs in O.S. No. 594 of 1991. That R.Ps. 453, 464 & 474/2014. 14 would be sufficient to indicate that the defendants in the suit were in possession of the property and a further relief of recovery of possession need not be granted. 13. The patent error thus committed by this Court constitute an error apparent on the face of record and therefore, it is contended that the judgments are liable to be reviewed. 14. Learned counsel appearing for the respondents contended that the contention has no merits at all. All the reliefs sought for by defendants 1 to 4 in the counter claim in O.S. No. 594 of 1991 have been granted. An error committed by the trial court in not granting a decree as far as recovery of possession as far as O.S. 594 of 1991 is concerned is corrected by the lower appellate court. This Court also found that there was an error in the decree passed by the trial court with respect to 1.70 meters of land and the decree granted for recovery of possession of green shaded portion in O.S.155 of 15 R.Ps. 453, 464 & 474/2014. 1996 is set aside by this Court. It could thus be seen that both the lower appellate court as well as this Court has addressed itself all the aspects of the case and found that the non-inclusion of recovery of possession as a part of the decree did not matter since injunction was granted against the plaintiff in O.S. 594 of 1991 whereby the possession of the defendants of the suit property stands acknowledged. 15. Learned counsel went on to point out that none of the reliefs sought for by the plaintiff in O.S.594 of 1991 was granted and it was found that Exts.A3 and A8 are not legally valid and the gift evidenced by Ext.B1 survives. Even assuming that there is an error in the decree drawn up, that is only a technical plea in view of the relief that has been granted to the respondents. In these review petitions, the technical plea so raised cannot be taken aid of to defeat the rights of the parties. Learned counsel highlighted that the litigation started in 1991 and more than two decades have elapsed. There has R.Ps. 453, 464 & 474/2014. 16 to be an end to this sort of litigation especially when the rights of the respondents in these review petitions have been upheld by three courts. Learned counsel went on to point out that one could have understood the contention raised by the learned counsel for the review petitioners had there been a semblance of right recognised in favour of the plaintiff in O.S.594 of 1991 in respect of the property covered by Ext.A3 document by any of the three courts. Having miserably failed to establish the validity of Exts.A3 and A8, clinging on to an inadvertant error committed by the court cannot enable the review petitioners to avoid the decree in the suit. Such technical pleas may not be entertained at this distance of time. 16. It has to be said that there is considerable force in the submission made by the learned counsel for the respondents. Even assuming that there is a lacuna in the decree passed by the trial court and even accepting that no decree for recovery of possession sought for in the counter R.Ps. 453, 464 & 474/2014. 17 claim in O.S. 594 of 1991 is seen granted, that itself may not be a ground to interfere. One should remember that O.S. 594 of 1991 filed by the review petitioners based on Exts. A3 and A8 was dismissed by the trial court and that decree was confirmed by the lower appellate court as well as this Court. Defendants 1 and 2 preferred counter claim in O.S. 594 of 1991 which was upheld by all the courts. Issues based on the counter claim in O.S.594 of 1991 were raised in the trial court and that could be seen from the judgment of the trial court. Issue Nos. 5 and 6 in O.S. 594 of 1991 relate to the right asserted by defendants 1 and 2 in O.S. 594 of 1991 in the counter claim preferred by them. Issue Nos. 1 to 4 in O.S. 594 of 1991 were jointly disposed of by the trial court and it was found that defendants 1 and 2 are entitled to succeed as regards issue No.5 formulated by the trial court for consideration. As far as issue No.6 is concerned, the following extract from the judgment of the trial court may be of some R.Ps. 453, 464 & 474/2014. 18 relevance. “Issue No.6 in O.S. 594 of 1991 and Issue Nos. 1 and 2 in O.S. 155 of 1996 and Issue No. 1 in O.S. 13 of 1998. In the light of my finding on issue Nos. 1 to 5 in O.S. 594 of 1991 the defendants are entitled to get a decree of declaration and junction as prayed for.” 17. It is significant to notice that all issues were answered in favor of the defendants in O.S. 594 of 1991 including the relief sought for in the counter claim. It is true that the reliefs that are granted by the court below should be reflected in the decree. The decree in the three cases have already been extracted. 18. But it is well settled by now that in case of any doubt regarding the construction of the decree, the court will be free to look into judgment as well as the pleading in the case. The judgment contains the reasons for the findings on each issue that arose for consideration. It will be imprudent to say that the decree should be understood dehors the R.Ps. 453, 464 & 474/2014. 19 judgment. If there is ambiguity in the decree, the judgment has to be looked into to ascertain the purport of the decree. 19. Before going further into the contention raised by the learned counsel for the review petitioners, one fact needs to be noticed. The contention taken by the review petitioners and claimed to have been agitated before this Court is not seen agitated before the lower appellate court. The review petitioners herein were the appellants before the lower appellate court also. While agitating his rights before the lower appellate court, the appellants did not labour under the impression that the decree for recovery of possession as sought for in the counter claim has not been granted. 20. Probably the observation of this Court while disposing of the R.S.As to the effect “It appears, it was because a decree for injunction was granted, no decree for recovery of possession was passed” may not be quite correct. But that does not matter. The right of the parties have been agitated R.Ps. 453, 464 & 474/2014. 20 and adjudicated by all the three courts. It has been found by all the three courts that the plaintiff in O.S. 594 of 1991 has no manner of right over the suit property involved in the said suit. Not only that, the right agitated in the counter claim by defendants 1 and 2 were found in favour of them It is significant to notice that none of the reliefs sought for by defendants 1 to 4 in O.S. 594 of 1991 in the various suits were declined except for the slight modification effected by the lower appellate court and this Court while disposing of the appeals against the decrees in the three suits. 21. Even if there is a lacuna in the decreetal portion of the judgment of the trial court, that cannot be taken aid of to defeat the rights of the parties. 22. At best what could be said is that the decree needs to be amended to bring it in tune with the relief granted in the judgment, if occasion so arises. But it cannot be said that the relief has not been granted as contended in the R.Ps. 453, 464 & 474/2014. 21 review petitions. 23. Technicalities shall not stand in the way of doing justice to the parties. Procedure after all handmaid for justice and cannot be taken aid of or made as a tool to deny justice or perpetuate injustice. (See the decision reported in Haryana State Cooperative Supply and Marketing Federation Limited v. Jayam Textiles ((2014) 4 SCC 704). 24. As rightly pointed out by the learned counsel for the respondents, two decades have elapsed since the litigation commenced. The rights agitated by defendants 1 to 4 in O.S. 594 of 1991 have been upheld by all the courts. It will not be in the interests of justice at this point of time to interfere with the judgment of these courts recognizing the rights of persons based on a technical plea such as the one taken in the review petitions. 25. There is yet another aspect. Going by the judgment of the trial court, it is very evident that the relief 22 R.Ps. 453, 464 & 474/2014. sought for by the defendants in O.S. 594 of 1991 have been granted. So also the reliefs in O.S. 155 of 1996 and 13 of 1998. In other words, defendants 1 to 4 had succeeded in their attempt to establish their claim over the suit property in each of the suits. They were also successful in obtaining a decree for partition with respect to 16 cents left behind by Narayani which was shown as B schedule in O.S. 155 of 1996. 26. Even assuming that the court in the decreetal portion of the judgment omitted to mention about the relief granted in O.S. 594 of 1991 may not be a ground to deny relief to defendants 1 to 4 or taken aid of to hold that their claim so far as the recovery of possession is concerned is barred by res judicata since that relief should be deemed to have been denied by the trial court as well as the other two courts. 27. Here, one may remember the principle Actus curiae neminem gravabit - an act of the Court shall prejudice R.Ps. 453, 464 & 474/2014. 23 no man. Even assuming that there is an error in the decreetal portion of the trial court judgment, it could at best be treated only as an omission on the part of the court in not specifying the nature of relief clearly, when as already noticed, a reading of the judgment will clearly show that the reliefs were granted as sought for by defendants 1 to 4 in O.S. 594 of 1991. For the above reasons, this Court is unable to accept the plea now raised in these review petitions. The review petitions are without merits and they are accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.