Ibrahim Pillai Abdul Rehiman Kunnumpurath Veedu Vattakkarikakkam Challamcode Muri Nedumangad Village v. Sulaiman and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 SA.No. 253 of 1999(E) --------------------AS.90/1991 of I ADDL.SUB COURT,TRIVANDRUM OS.492/1988 of PRL.MUNSIFF COURT,NEDUMANGAD .................... ## APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------- IBRAHIM PILLAI ABDUL REHUMAN KUNNUMPURATHU VEEDU VATTAKARIKKAKAM CHALLAMCODE MURI NEDUMANGAD VILLAGE BY ADV. SRI.B.KRISHNA MANI SRI.K.SUBASH CHANDRA BOSE SRI.V.PREMCHAND ## RESPONDENTS/APPELLANTS/DEFENDANTS -------------------------------------------------------------- 1. IBRAHIM PILLAI SAINUDHEEN PILLAI KUNNUMPURATHU VEEDU )( DIED AND LRS IMPLEADED SHAKKINS MANZIL, VATTAKARIKKAKAM CHELLAM CODE MURI, NEDUMANGAD VILLAGE 2. SULAIMAN, PUNARTHAM VEEDU, CHANDRANKUZHI, THANNIMOODU IRINCHAYAM PO, NEDUMANGAD 695 561 3. S.ZANAR, 'SAKKAN MANZIL' THANNIMOODU, IRINCHAYAM PO NEDUMANGAD 695 561 4. S.KABEER, SAKKAN MANZIL, THANNIMOODU IRINCHAYAM PO, NEDUMANGAD 695 561 5. S.SAKKEER, NGO QUARTERS MUSEUM C/64, MUSEUM PO THIRUVANANTHAPURAM 695 033 SA 253/99 -2- 6. S.HAKKEEM, KAIRADI G LINE G-197/1, THIRUMALA, THIRUMALA PO THIRUVANANTHAPURAM 695 006 7. S.SAGEER, EADAM HOUSE RAMAPURAM, THANNIMOODU IRINCHAYAM PO, NEDUMANGAD 695 561 (LRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 2 TO 7 AS PER ORDER DT.1.9.2011 ON IA 614/11, IA 615/11 AND CM APPL.251/11.) BY ADV. SRI.G.S.REGHUNATH FOR R4,5,6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------SA No.253 of 1999-E ------------------------------------Dated this the 20[th] day of November 2011 ## Judgment The plaintiff, who had his suit dismissed by the lower appellate court, is the appellant before this court. 2. The suit was one for redemption of a mortgage and recovery of possession on the strength of title. The suit property belonged to the father of the plaintiff and the defendant in the suit. Plaint A schedule property was outstanding on a mortgage of the year 1123 M.E. in favour of one Karthiyani Amma Rugmini Amma. She assigned her rights in favour of one Bhaskara Pillai in 1953. Ibrahim Pillai, the father of the parties died on 02.06.1950. Thereafter, the legal heirs of Ibrahim Pillai instituted OS No.163/68 for redemption of the mortgage. While the suit was pending, Ext.A1 partition deed was entered into between the legal heirs of Ibrahim Pillai on SA 253/99 2 02.06.1969, whereby the 52 cents outstanding on mortgage was also partitioned. It was divided into three plots. Plaint A schedule having an extent of 18 cents was allotted to the plaintiff, B schedule having 15 cents was allotted to the defendant and 19 cents was allotted to another brother of the plaintiff and the defendant. Ext.A1 partition deed also stipulated that the respective sharers are free to redeem their share from the mortgagee. 3. It seems that thereafter by a compromise entered into between the defendant in this case and the mortgagee in OS No.163/68, by which the mortgage was redeemed. Thereafter, the present plaintiff instituted OS No.191/85 seeking declaration of his title, possession and for other ancillary reliefs. The defendant in the present suit was the defendant in the said suit also. The allegation raised in the earlier suit was that pursuant to the partition deed, the parties had taken possession of their respective shares and also that the redemption as per Ext.B1 compromise decree was for and on behalf of the co- SA 253/99 3 mortgagees, who were impleaded in the earlier suit. The suit was resisted by the defendant in the earlier suit by pointing out that the allegation that the redemption was for and on behalf of the co-owners was not correct and he had redeemed it on his own. He also disputed that the plaintiff had title and possession. The trial court in OS No.191/85 came to the conclusion that the plaintiff has title to the property but possession was with the defendant in the said suit. Holding that there was no prayer for recovery of possession of the strength of title, the suit was partly decreed. 4. Thereafter, the plaintiff in the said suit filed the present suit OS No.492/88 for redemption of mortgage and for recovery of possession against the same defendant on the basis of the allegations which have already been adverted to. The defendant in the present suit also took similar contentions which were raised in the earlier suit. It appears that the defendant also claimed the benefit of fixity of tenure under the Kerala Land Reforms Act. That was SA 253/99 4 found against on the basis of the finding that the parties are co-owners. The trial court held that the plaintiff has possession and the defendant is not entitled to the benefit of the Kerala Land Reforms Act and a decree was passed as follows : “In the result, the suit is decreed in the following terms : The plaintiff is allowed to redeem the mortgage liability and recvoer possession of the plaint B schedule property on depositing Rs.1730.50 in court within three months from the date of this decree, towards the proportionate redemption price, to the credit of the defendant and the plaintiff will give notice to the defendant shoing such deposit. the plaintiff is entitled to get 6% interest on the redemption price from the dte of notice of deposit till the date of recovery of the property or for three years whichever even happens first ; SA 253/99 5 - the defendant is entitled to draw the amount deposited on surrender of possession of the plaint B schedule property to the plaintiff on or before the expiry of one month from the date of receipt of notice, free from all encumbrances and on production of all documents relating to the B schedule property, if any, in his possession in the event of default, the plaintiff is at liberty to redeem and recover possession through court.” 5. The defendant took up the matter in appeal as AS No.90/91 before the Sub Court, Thiruvananthapuram. The lower appellate court took the view that the suit is barred under Order II Rule 2 of CPC and accordingly allowed the appeal and dismissed the suit. That brings the plaintiff before this court. 6. Notice is seen issued on the following questions of law raised in the second appeal : SA 253/99 6 - (i) Was the lower appellate court correct in holding that the suit is barred by constructive res judicata and under Order II Rule 2 CPC ? - (II) Is it not clear that the defendant has redeemed the entire property for and on behalf of other co-owners and as such by virtue of the provisions of Section 60 of the Transfer of Property Act, the contentions of the defendant can never be sustained ? - (iii) Is it not clear that the plaintiff has also got equity of redemption and that the present suit is perfectly maintainable ? - (iv) Is it not clear that the defendant has totally taken an inconsistent stand by claiming the benefits under the Kerala Land Reforms Act ? - (v) Is it not clear that the lower appellate court has totally misconstrued the scope of Exts. B2 and B3 ? - (vi) Is it not clear that the cause of action in SA 253/99 7 Exts.B2 and B3 and in the present suit are totally different ? (vii) Is it clear that a section suit for redemption is not barred ? 7. The learned counsel for the appellant pointed out that the lower appellate court was not justified in holding that the present suit is barred under Order II Rule 2 of CPC. The learned counsel also drew the attention of this court to the cause of actions made mention of in the plaint and pointed out that the cause of action in the present suit is different from the earlier suit. In the earlier suit, OS No.191/85, the plaintiff had clearly averred that he was in possession of the property and the defendant was alleging that he trespassed into it. It therefore, became necessary for him to seek a declaration of his title and possession. It was only when the decree in the said suit came that he came to realise that he was found to be out of possession and that necessitated the present suit. Therefore, it is contended that the cause of action is SA 253/99 8 different in the present suit. 8. The learned counsel for the respondent, on the other hand, pointed out that the cause of action is the same and the observation of the trial court in the earlier suit that the plaintiff ought to have sued for recovery of possession on the strength of title by depositing the proportionate mortgage amount clearly bars the present suit and the lower appellate court was justified in holding so. 9. On a reading of the judgment of the lower appellate court, it does not appear that the lower appellate court has adverted to the cause of action pleaded in the plaint. It has been specifically averred that the cause of action arises on 02.09.1969 the date of Ext.A1 partition deed, on 02.07.1977 when the mortgage was redeemed and on 20.03.1985, when the defendant tried to trespass into the property and on 28.02.1987 when the decree in OS No.191/85 was passed. It is true that the three dates made mention of in the portion for cause of action in the present SA 253/99 9 suit i.e., 02.09.1969, 02.07.1977 and 20.03.1985 are the same as in the earlier suit. However, the plaintiff has clearly averred in the plaint that he has got a fresh cause of action by the decree in OS No.191/85 whereby he was declared to be out of possession. This aspect has not been considered by the lower appellate court. 10. The learned counsel for the respondent brought to the notice of this court, the decision in **Haridas Mondal v. Anath Nath Mittra** (AIR 1961 SC 1419) wherein it was held that the plaintiff ought to have sought for all the reliefs and he cannot bring a second suit for the very same relief which he ought to have sought in the earlier suit. 11. The learned counsel for the appellant, on the other hand pointed out that when a cause of action arises subsequent to the filing of a suit, it is not necessary for the plaintiff in the earlier suit to seek reliefs in that suit itself based on that cause of action. Anyhow, these are all matters which needs re-consideration at the hands of the SA 253/99 10 lower appellate court. In the result, this appeal is allowed. The impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what is stated above. The parties will be at liberty to seek amendment of the pleading, if they so choose. In case the parties apply for adducing further evidence, the court below may consider such application/(s) also. The parties shall appear before the lower appellate court on 22.12.2011. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within three months after the re-opening of the court after Christmas vacation. ## **A copy of the judgment shall be forwarded to the lower appellate court.** ## **P.Bhavadasan, Judge** sta SA 253/99 11 SA 253/99 12