IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
## THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938
RSA.No. 607 of 2016 (E)
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AGAINST THE JUDGMENT & DECREE DATED 30-01-2016 IN AS 28/2012 of II ADDL. DISTRICT COURT,PALAKKAD
AGAINST THE JUDGMENT & DECREE DATED 23-11-2011 IN OS 325/2008 of ADDL. SUB COURT, PALAKKAD
## APPELLANT/APPELLANT/PLAINTIFF:
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ILLIYAS, S/O MUHAMMED HANEEFA, AGED 58, RESIDING AT METTUPALAYAM, KOLLENGODE POST, KIZHAKKETHARA VILLAGE, CHITTUR TALUK, NOW RESIDING AT PULIKKOTTU KALAM, SV STREET, KOLLANGODE POST, CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P
RESPONDENTS/RESPONDENT 1&3 TO 10/DEFENDANT 1 & LRS OF DEFENDANT 2:
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1. MEHABOOBA
W/O MUHAMMED HANEEFA, AGED 80, RESIDING AT METTUPALAYAM, KIZHAKKETHARA VILLAGE, KOLLANGODE POST, CHITTUR TALUK, RESIDING AT PULIKKOTTU KALAM, SV STREET, KOLLANGODE POST, CHITTUR TALUK, PALAKKAD DISTRICT-678101.
2. JAINAMA
W/O MUHAMMED IBRAHIM, AGED 76, RESIDING AT CHIKKANAMPARA, KIZHAKKETHARA VILLAGE, KOLLENGODE POST, CHITTUR TALUK-678506.
3. VAHEEDA BHANU
D/O MUHAMMED IBRAHIM, AGED 56, W/O MUHAMMED SUBRAL, AMBATTUPALAYAM, PARAMBAKALAM, THATHAMANGAL POST, CHITTUR TALUK-678506.
....2
RSA.No. 607 of 2016 (E)
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4. MUHAMMED KHANI S/O ALIAS BABU, AGED 54, CHIKKANAMPARA, METTUPALAYAM, KOLLANGODE POST, KIZHAKKETHARA VILLAGE, CHITTUR TALUK-678101.
5. JEREENA
- W/O KAILABDEEN, AGED 52, PEELIYODE P.,O., KARIPPALI, PATTANCHERRY, CHITTUR TALUK-678101.
6. SAKKEER HUSSAIN
- S/O MUHAMMED IBRAHIM, AGED 50, CHIKKANAMPARA, METTUPALAYAM, KOLLANGODE POST, KIZHAKKETHARA VILLAGE, CHITTUR TALUK-678506.
7. MUHAMMED KISHORE AGED 48, S/O MUHAMMED IBRAHIM, CHIKKANAMPARA, METTUPALAYAM, KIZHAKKETHARA VILLAGE, KOLLENGODE POST, CHITTUR TALUK-678506.
8. HASEENA
- W/O SIRAJ, AGED 42, ROBINSON ROAD, NEAR ANIE DR., KOPPAM AMSOM, PALAKKAD-01.
9. SHAJITHA
- W/O HARIS, AGED 40, BHARATH NAGAR, O.P.KATHAKALI FOOD PROCESSING COMPANY, EAST VENNAKKARA, PALAKKAD POST & TALUK-678101.
## R6 BY ADV. SRI.P.B.KRISHNAN( CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OKB
## K.HARILAL, J.
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## R.S.A. No.607 of 2016
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Dated this the 13[th] day of December, 2016
## JUDGMENT
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The appellant herein is the appellant in A.S.No.28/2012 on the files of the II Additional District Court, Palakkad and the plaintiff in O.S. No.325/2008 on the files of the Additional Sub Court, Palakkad. The respondent No.1 herein is the defendant No.1 in the above original suit and respondent No.1 in the said appeal. The other respondents herein are the legal representatives of the deceased defendant No.2 in the above suit, and respondents 3 to 10 in the above Appeal Suit. The suit was filed for declaring that the plaintiff, defendant No.1 and one Sara Umma are the legal representatives of the deceased Haneefa Rawther and for partition claiming 7/8[th] share in the plaint A schedule property and 7/16[th] share in the plaint B schedule property.
2. It is the case of the plaintiff that plaint A schedule properties were originally belonged to late
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Haneefa Rawther of whom the plaintiff, defendant No.1 and the said Sara Umma are the legal representatives. Sara Umma assigned her right in favour of the plaintiff and such partition was sought for as stated in the plaint. Similarly, B schedule properties were originally belonged to Sulaikha Umma of whom late Haneefa Rawther and defendant No.2 are the legal representatives. On the demise of Haneefa Rawther the appellant would be entitled to get a share in the plaint B schedule property also. Thus, the plaintiff sought for partition of A & B schedule properties.
3. In the written statement, filed by the 2[nd] defendant, it is contended that the suit is barred by res judicata, waiver and estoppel caused by the compromise decree passed in O.S.No.100/1987. It is also contended that the present suit is not maintainable under Section 96(3) of the Code of Civil Procedure and barred under Order 23 Rule 3-A of the C.P.C. That apart, the plaintiff has filed I.A. No.591/2007 in the earlier suit O.S.No.100/1987 to set aside the compromise decree and that petition was dismissed on merit. Hence the present suit is barred by res judicata caused by the order dismissing I.A. No.591/2007. According
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to the defendant, whatever properties were given to the plaintiff as per the said compromise decree were disposed of by him and thereafter he has come forward with the present suit without merits or bona fides. The plaintiff is not the son of Haneefa Rawther and thereby he is not the legal heir of Haneefa Rawther.
4. On the aforesaid rival pleadings, the courts below considered the question whether the suit is maintainable in view of the bar under Order 23 Rule 3-A of the C.P.C. and concurrently found that the suit is not maintainable. Even though the plaintiff preferred an appeal, the appellate court also concurred with the finding of the trial court that the suit is not maintainable. The legality and correctness of the said finding are assailed in this appeal.
5. Heard the learned counsel for the appellant and the learned senior counsel appearing for the respondents.
6. The first and prime question to be considered in this Regular Second Appeal is, whether the courts below are justified in finding that the suit is not maintainable under Order 23 Rule 3-A of the C.P.C., res judicata caused by the compromise decree passed in O.S. No.100/1987 and
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the order passed in I.A. No.591/2007 in O.S. No.100/1987. It is not disputed that the compromise decree has been passed in the earlier suit O.S.No.100/1987 and the said suit was filed for a declaration that the plaintiff is the legal heir of the deceased Haneefa Rawther and also for partition of plaint A & B schedule properties. The present suit is also filed seeking partition of plaint A & B schedule properties, the subject matter in O.S.No.100/1987. According to Order 23 Rule 3-A of the C.P.C., no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. It is true that, in the instant case, the appellant has not prayed for setting aside the compromise decree passed in O.S.No.100/1987. But, needless to say, unless the compromise decree passed in O.S.No.100/1987 is set aside, no partition can be effected further in the present suit with respect to the plaint A & B schedule properties. Therefore, this Court finds that virtually the prayer is for effecting partition after setting aside the compromise decree passed in O.S.No.100/1987. So also, the present suit is barred by the principle of estoppel caused by the compromise decree passed in O.S.No.100/1987.
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7. That apart, the appellant has filed I.A. No.591/2007 in O.S.No.100/1987 to set aside the said compromise decree and the same was also dismissed on merits. Thus, the matter in issue involved in this suit had been directly and substantially an issue in I.A. No.591/2007 in O.S.No.100/1987, which stands dismissed by the order passed by the trial court and confirmed by the appellate court.
8. In Raja Sri Sailendra Narayan Bhanja Deo v. The State of Orissa (AIR 1956 SC 346), the Supreme Court held that consent decree would be considered for all practical purposes as having same effect of res judicata and it raises an estoppel as much as the decree passed.
9. The learned counsel for the appellant submits that the F.A.O. filed challenging the order in I.A. No.591/2007 is still pending. But this Court is of the view that the pendency of F.A.O. is of no consequence at all. Thus, this Court finds that the courts below are justified in finding that the suit is not maintainable under Order 23 Rule 3-A of the C.P.C. and barred by res judicata caused by the compromise decree in O.S.No.100/1987 and the order passed in I.A. No.591/2007 in O.S.No.100/1987. There is no illegality
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or impropriety in the findings of the courts below and no question of law arises for consideration in this appeal.
This Regular Second Appeal will stand dismissed. All pending interlocutory applications will stand
closed.
Sd/K.HARILAL, Judge.
okb
