Govindan Pankajaksha v. Madhavan Purushothaman and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940** **SA.No. 806 of 1997** **AGAINST THE JUDGMENT AND DECREE DATED 11-12-1996 IN AS 67/1992 of ADDL.DISTRICT COURT-I,MAVELIKKARA** **AGAINST THE JUDGMENT AND DECREE DATED 21-12-1991 IN OS 145/1989 of MUNSIFF COURT,HARIPAD** **APPELLANT IN THE HIGH COURT / APPELLANT IN THE APPELLATE COURT / PLAINTIFF IN THE TRIAL COURT:** **GOVINDAN PANKAJAKSHA, THEKKETHOPPIL VEEDU, NADUVATTOM MURI, PALLIPPAD VILLAGE (DIED) LR'S IMPLEADED** **ADDL APPELLANTS -LR'S OF DECEASED SOLE APPELLANTS** **ADDL PETITIONERS:-LEGAL HEIRS OF APPELLANT** **2. RATNAMMA, W/O. LATE GOVINDAN PANKAJAKSHAN, THEKKETHOPPIL HOUSE, MARANGATHUVILA, NADUVATTOM MURI, PALLIPPAD VILLAGE** **3. LEKHA, D/O. OF -DO -DO-** **4. PANKAJAM, D/O. OF -DO -DO-** **5. PADMAKSHAN, S/O. OF -DO -DO-** **ADDL APPELLANTS 2 TO 5 IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DATED 23/11/2007 IN I.A.1925/07 IN SA** - **BY ADVS.SRI.V.K.NANDAKUMARAN HARIHARAPUTHRAN(B/O) SRI.PYLOKUTTY GEORGE** **RESPONDENTS IN THE HIGH COURT / RESPONDENTS IN THE APPELLATE COURT / DEFENDANTS IN THE TRIAL COURT:** **1. MADHAVAN PURUSHOTHAMAN, THEKKETHOPPIL VEEDU, NADUVATTOM MURI, PALLIPPAD VILLAGE** **2. PURUSHOTHAMAN SANTHAMMA OF -DO -DO-** - **3. PURUSHOTHAMAN VISWANATHAN OF -DO -DO- NAME CORRECTED** **4. SANTHAMMA SUSEELA OF -DO -DO-** **5. PURUSHOTHAMAN ANI OF -DO -DO-** **6. MADHAVAN CHANDRAN MATHIKULATH THEKKETHIL VEEDU, HARIPPAD VILLAGE THULAMPARAMBU VADAKKUM MURI** **7. MADHAVAN RAVINDRAN, MULLATHANATHU THEKKETHIL VEEDU, NENDOOR MURI, PALLIPPAD VILLAGE** **2** ## **SA.No. 806 of 1997** ## **8. NANI OF -DO -DO- (DIED)** ## **LR'S RECORDED** **RESPONDENTS 1,6 AND 7 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 8TH RESPONDENT AS PER THE ORDER DATED 01/08/2017 IN IA 725/2008** **THE NAME OF 3RD RESPONDENT, PURUSHOTHAMAN VISWANATHAN IS CORRECTED AS “PURUSHOTHAMAN VISWABARAN ALIAS SREEKUMAR” AS PER THE ORDER DATED 01/8/2017 IN IA 720/2008.** **BY ADV. SRI.R.RAMADAS- R1, R2, R4, R5** **THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.B.SURESH KUMAR, J.** ## **--------------------------------------------** ## **S.A.No.806 of 1997** **--------------------------------------------------------------Dated this the 30[th] day of July, 2018** ## **J U D G M E N T** Plaintiff in a suit for injunction, both prohibitory and mandatory, is the appellant in the second appeal. 2. Defendants 1, 6 and 7 are the children of eighth defendant. The second defendant is the wife and defendants 3 to 5 are the children of the first defendant. The plaint A schedule property belonged to the father of the plaintiff and the same devolved on the plaintiff on the death of his father. The case set out by the plaintiff in the plaint is that his father permitted the husband of the eighth defendant Kesavan Madhavan to put up a hut in plaint A schedule property; that Kesavan Madhavan accordingly put up the hut in the plaint A schedule S.A.No.806 of 1997 : 2 : property and was residing there with defendants 1 and 8 who are his son and wife respectively; that the suit filed by the plaintiff as O.S.No.93 of 1965 earlier for eviction of Kesavan Madhavan as also defendants 1 and 8 from the hut was dismissed holding that Kesavan Madhavan being a 'kudikidappukaran' as defined under the Kerala Land Reforms Act (the Act), he is not liable to be evicted; that Kesavan Madhavan ceased to be a 'kudikidappukaran' later when he acquired a property and that the defendants who are claiming under Keshavan Madhavan cannot therefore continue to occupy the plaint A schedule property. The plaintiff, therefore, prayed for a decree of mandatory injunction directing the defendants to remove the hut in the property and for a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property. Defendants 1, 3 and 4 resisted the suit contending that the same is barred by res judicata in the light of the decision in O.S.No.93 of 1965. S.A.No.806 of 1997 : 3 : According to them the first defendant is not the son of Kesavan Madhavan; that he is the son of the elder brother of Kesavan Madhavan namely Damodaran who married eighth defendant prior to her marriage with Kesavan Madhavan; that the first defendant has independent kudikidappu right in plaint A schedule property; that O.S.No.93 of 1965 was dismissed taking note of the said independent kudikidappu right of the first defendant as well and that therefore the decision in O.S.No.93/1965 would operate as res judicata even if it is found that Kesavan Madhavan ceased to be a 'kudikidappukaran'. The trial court dismissed the suit holding that the suit is barred by res judicata and the appellate court confirmed the said decision of the trial court. The plaintiff is aggrieved by the said decision of the courts below. Hence this second appeal. 3. Heard the learned counsel for the appellant/plaintiff as also the learned counsel for respondents 1, 2 and 4/defendants 1,2 and 4. S.A.No.806 of 1997 : 4 : 4. Having heard the learned counsel for the parties on either side, the following substantial question of law has been formulated for decision in the second appeal. Were the courts below justified in dismissing the suit as barred by _res judicata_ in the light of the decision in O.S.No.93/1965? 5. While considering the plea of res judicata, the trial court was proceeding as if the contesting defendants were persons claiming rights under Kesavan Madhavan in O.S.No.93/1965. I shall consider first the question whether the suit is barred by res judicata, had the contesting defendants been persons claiming rights under Kesavan Madhavan. It is trite that if the nature of interest of the defendant in a suit changes after the decision in the first suit, a second suit for identical relief will not be barred by res judicata. See **Korin** v. **Indian Cables Co. Ltd. and others** (AIR 1978 SC 312). It is also trite that a previous decision on a matter in issue would operate as res judicata in a subsequent proceeding between the same parties, only if the S.A.No.806 of 1997 : 5 : cause of action for the subsequent proceeding is the same as in the previous proceeding, but not when the cause of action is different. See **Mathura Prasad Bajoo Jaiswal and Others v. Dossibai N.B.Jeejeebhoy** [(1970) 1 SCC 613]. As far as the present case is concerned, Kesavan Madhavan was a registered kudikidappukaran entitled to protection from eviction when the earlier suit was filed. At the relevant time, there was no provision for purchase of kudikidappu. Kesavan Madhavan applied for purchase of kudikidappu only after the disposal of the earlier suit when the Act was amended conferring right on kudikidappukars to purchase the right, title and interest in the property in which the kudikidappu is situated. It is the said application that was dismissed by the appellate authority under the Act holding that he ceased to be a kudikidappukaran. The present suit is filed thereafter and the cause of action for the present suit is the disqualification suffered by Kesavan Madhavan to continue as a kudikidappukarn in the property. In other S.A.No.806 of 1997 : 6 : words, the cause of action for the earlier suit and the present suit are different. Not only that, Kesavan Madhavan was a kudikidappukaren when the earlier suit was filed and he ceased to be a kudikidappukaren when the present suit was filed. In a case of this nature, according to me, the decision in the earlier suit will not operate as res judicata for the present suit. The finding rendered by the trial court that the suit is barred by res judicata is, therefore, unsustainable. 6. While considering the plea of res judicata, it is seen that the appellate court has taken the view that even if it is found that the suit is not barred by res judicata as against persons claiming under Kesavan Madhavan, the same is barred by res judicata as against the first defendant and persons claiming under him as the independent right of the first defendant as a kudikidappukaran was also taken note of by the court while dismissing the earlier suit. The specific case of the plaintiff in this regard is that the first defendant was a person claiming rights under Kesavan S.A.No.806 of 1997 : 7 : Madhavan in the earlier suit. As noted, Keshavan Madhavan and defendants 1 and 8 were the defendants in O.S.No.93/1965. The said suit was dismissed by the appellate court holding that Kesavan Madhavan is a kudikidappukaran and therefore he is not liable to be evicted from the hut. Ext.A3 is the judgement in O.S.No.93/1965 and Ext.B4 is the judgment in the appeal preferred against the said judgement, namely, A.S.No.149/1968. The defendants who have raised a plea of res judicata have not produced the pleadings in the earlier suit. Ext.A3 and Ext.B4 indicate that O.S.No.93/1965 was a suit instituted stating that the first defendant is the son of Keshavan Madavan. The said documents do not indicate that the first defendant has contended in the earlier suit that he has an independent right to reside in the hut in the property as kudikidappukaran. There was also no adjudication in the earlier suit as regards the independent right of kudikidappu, if any, of the first defendant. The finding in Ext. B4 S.A.No.806 of 1997 : 8 : judgment is only that Kesavan Madhavan is a kudikidappukaran. It is thus evident that first defendant was claiming rights in the earlier suit only under Kesavan Madhavan and he cannot therefore raise a plea of res judicata independent of Kesavan Madhavan. 7. Even though the first defendant had not raised a plea of kudikidappu in the earlier suit, in Ext. B4 judgment, there is an observation to the effect that defendants 1 and 8 are also kudikidappukars. Even assuming that defendant 1 and 8 were having independent kudikidappu rights in the property, as noted above, only if they continue to be kudikidappukars, the present suit would be barred by res judicata. In this context, it is relevant to note that in the present suit, the first defendant had raised a plea of kudikidappu and sought a reference of the said issue for adjudication by the Land Tribunal. The said prayer of the first defendant was, however, turned down by the trial court holding that he was residing in the hut under Kesavan S.A.No.806 of 1997 : 9 : Madhavan. The first defendant challenged the said decision of the trial Court before this Court in C.R.P.No.2401/1990 and this court remitted the matter to the trial court for considering the issue whether the first defendant can raise an independent right in the property and whether the said issue needs to be referred for adjudication to the Land Tribunal. Thereupon, it is seen that by an elaborate judgment dated 04/10/1990, the trial court found that the first defendant was residing in the hut under Kesavan Madhavan; that he cannot raise an independent Kudikidappu right in the property and that therefore, the matter need not be referred to the Land Tribunal for adjudication of the said issue. The said order has not been challenged by the first defendant. The correctness of the said order is not seen examined by the appellate Court also in A.S.No.149/1968. In other words, the first defendant being a person who is precluded from raising a plea of kudikidappu cannot raise a plea of res judicata in the present suit in the light of the observation S.A.No.806 of 1997 : 10 : made by the appellate court in the earlier suit. The substantial question of law formulated for decision in the second appeal is thus answered in favour of the appellant. In the result, the second appeal is allowed and O.S.No.145 of 1989 on file of the Munsiff's Court, Haripad is decreed as prayed for. Sd/- **P.B.SURESH KUMAR JUDGE** rsr