Kaithakkal Jose v. Nedumpallil Valsamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946** **RSA NO. 242 OF 2024** **AGAINST THE JUDGMENT AND DECREE DATED 26.02.2011 IN OS** **NO.163 OF 2008 OF MUNSIFF COURT, PAYYANNUR** **ARISING OUT OF THE JUDGMENT AND DECREE DATED 18.11.2023** **IN AS NO.31 OF 2011 OF SUBORDINATE JUDGE'S COURT,** ## **PAYYANNUR** ## **APPELLANT/APPELLANT/PLAINTIFF:** **KAITHAKKAL JOSE, AGED 70 YEARS** **S/O. CHANDY, AGRICULTURE, VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511** **BY ADVS.M.SASINDRAN SATHEESHAN ALAKKADAN** **RESPONDENTS/RESPONDENTS AND SUPPLEMENTAL RESPONDENTS/ DEFENDANT NOS.2 AND 3 AND LEGAL HEIRS OF 1ST DEFENDANT:** **1 NEDUMPALLIL VALSAMMA AGED 74 YEARS W/O. JOHN, AGRICULTURE, VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511** - **2 THE SECRETARY CHERUPUZHA GRAMA PANCHAYAT, CHERUPUZHA, KANNUR DISTRICT, PIN - 670511** - **3 SHERIN AGED 49 YEARS** **D/O. NEDUMPALLIL JOHN, NO EMPLOYMENT, RESIDING AT VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511** **4 ROJIN, AGED 46 YEARS** **D/O. NEDUMPALLIL JOHN, NO EMPLOYMENT, RESIDING AT VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.S.A.No.242 of 2024** 2 ## **C.S.SUDHA, J.** **---------------------------------R.S.A.No.242 of 2024 -------------------------------------------------** ## **Dated this the 28th day of May 2024** ## **J U D G M E N T** This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the plaintiff/appellant is against the judgment and decree dated 18/11/2023 in A.S.No.31/2011 on the file of the Subordinate Judge's Court, Payyannur, which appeal in turn is against the judgment and decree dated 26/02/2011 in O.S.No.163/2008 on the file of the Munsiff Court, Payyannur. The parties and the documents will be referred to as described in O.S.No.163/2008. 2. The suit was filed by the plaintiff/appellant against the defendants/respondents seeking declaration and consequential injunction. According to the plaintiff, his father obtained three acres of property as per purchase certificate no.18248/1976 issued **R.S.A.No.242 of 2024** 3 in O.A.No.6209/1976 by the Land Tribunal, Taliparamba. Out of the said three acres, the plaint A schedule property was gifted to the plaintiff as per document no.2151/2004 of S.R.O., Peringome. Since then the plaintiff has been in possession and enjoyment of the property. The properties of defendants 1 and 2 are situated on the eastern and western side of the plaint A schedule property. The river on the northern side of the plaint A schedule property is vested in the third defendant panchayat. The plaint B schedule, part of plaint A schedule property, is not river puramboke. 2.1. Defendants 1 and 2 filed a false suit, that is, O.S.No.114/1988, alleging attempt of trespass into their property by the plaintiff's father. Before filing the said suit, defendants 1 and 2 colluding with the then Taluk Surveyor, Taliparamba in an application to fix the northern boundary of the property, removed some of the survey stones and fixed the survey boundary about 75 links to the further south of the existing survey boundary, which was against the field measurement book and plan. On the basis of **R.S.A.No.242 of 2024** 4 the wrong fixation of the boundary line, O.S.No.114/1988 came to be partly decreed in favour of defendants 1 and 2. First appeal, A.S.No.3/1991 and the second appeal, S.A.No.714/1995 affirmed the decree of the trial court. The judgment of the second appeal was dated 07/04/2008. By misusing the order of injunction obtained in O.S.No.114/1988, defendants 1 and 2 committed damage in the property. After the survey boundary had been wrongly fixed by the then Taluk Surveyor, Taliparamba, the Tahsildar as per notice dated 15/08/1988 informed the parties that the northern survey line of R.S.No.90/1 had been re-fixed and any person aggrieved by the same could file an appeal before the District Survey Superintendent. Accordingly, the plaintiff's father filed ALC.86/88 D8. Pursuant to the same, the District Survey Superintendent measured the property and refixed the survey line and survey stones in accordance with the field measurement book and passed an order to the said effect on 20/10/1992. These facts had been reported by the Advocate Commissioner in **R.S.A.No.242 of 2024** 5 O.S.No.132/1991 filed by the plaintiff's father. It was only because the Advocate Commissioner in O.S.No.114/1988 inspected the property when the survey stones and the survey boundary had been wrongly fixed by the Surveyor, he happened to submit a report and plan based on the wrong survey boundary, on the basis of which the suit came to be wrongly decreed in favour of defendants 1 and 2. The plaintiff's father was unable to bring the real facts to the notice of the appellate court including the refixation of the survey boundary and hence the decree of the trial court came to be wrongly confirmed by the appellate courts also. In none of the earlier cases, third defendant panchayath was a party. The decree passed in O.S.No.114/1988 and confirmed in the first and the second appeals, has cast a cloud on the title and possession of the plaintiff over the plaint schedule property and therefore the suit for declaring that the survey boundary shown by the Advocate Commissioner in O.S.No.132/1991 to be the actual survey boundary. As the panchayath was not a party in the earlier **R.S.A.No.242 of 2024** 6 proceedings, there is no bar in filing a fresh suit and hence the suit. 3. Defendants 1 and 2 filed written statement denying the claim of the plaintiff over the plaint 'A' Schedule property. According to them, the plaintiff's father never obtained any title over the property. Gift deed no.2151/2004 relied on by the plaintiff was also disputed by the defendants on the ground that the plaintiff's father had no right to transfer the property to the plaintiff. The gift deed was created for the purpose of the suit and the plaintiff has not obtained any right or possession over the property. The defendants filed O.S.No.114/1988 when the plaintiff's father tried to trespass into their property. The said suit was decreed. The decree of the trial court was confirmed by the appellate courts also. After S.A.No.714/2005 was dismissed on 07/04/2008, the present suit has been filed raising false allegations. The plaintiff's father had filed three other suits also against the defendants, namely, O.S.No.208/1999, **R.S.A.No.242 of 2024** 7 O.S.No.349/2001 and O.S.No.110/2002. All the said suits were tried jointly and dismissed. Appeals against the said decree, namely A.S.No.112/2003, A.S.No.113/2003 and A.S.No.114/2003 filed against the said judgment and decree are pending. A portion of the plaint schedule property in the suits filed by the plaintiff's father was transferred to the plaintiff. The gift deed relied on by the plaintiff was created for the purpose of creating a fresh cause of action. The allegation that the defendants had colluded with the then Taluk Surveyor, Taliparamba and had got the survey boundary wrongly fixed is incorrect and false. O.S.No.110/2002 had been filed by the plaintiff's father for a declaration that the refixation of the survey boundary as per the order of the District Survey Superintendent, was infact the actual survey boundary. The said suit after trial was dismissed. The subject matter in the present suit and in the suits filed by the plaintiff's father is one and the same and hence the suit is barred by _res judicata._ 4. The third defendant panchayath filed written statement **R.S.A.No.242 of 2024** 8 denying the allegations in the plaint and also contending that the suit is barred by _res judicata_ as the dispute relating to the subject matter had already been adjudicated in O.S.No.114/1988 which judgment and decree has obtained finality in Second Appeal No.714/1998. 5. Necessary issues were framed by the trial court and the parties went to trial on the basis of the aforesaid pleadings. PW1 to PW3 were examined and Exts.A1 to A12 were marked on the side of the plaintiff. No oral evidence was adduced by the defendants. Exts.B1 to B3 were marked on the side of the defendants. The report and plan of the Advocate Commissioner were marked as Exts.C1 to C3. 6. The trial court on an appreciation of the oral and documentary evidence, rejected the contentions of the plaintiff and held that the relief sought for in the present suit and in the earlier suits filed by the plaintiff's predecessor-in-interest, who is none other than his father, was one and the same and hence the suit is **R.S.A.No.242 of 2024** 9 barred by _res judicata_ . The trial court also found that the suit is barred by limitation and that plaintiff had failed in establishing the identity of the property. The judgment and decree of the trial court has been confirmed by the first appellate court against which the present second appeal has been filed. 7. Heard the learned counsel for the appellant/plaintiff. 8. According to the learned counsel both the trial court as well as the appellate court grossly erred in holding the suit to be barred by the principle of _res judicata_ . Relying on the dictum in **Vaish Aggarwal Panchayat v. Inder Kumar, [(2020)12 SCC 809]** it was argued that when a decree has been obtained by fraud, the principle of _res judicata_ is not applicable. It was also submitted that the earlier decree happened to be passed in favour of defendants 1 and 2 due to the fraudulent act of the then Taluk Surveyor, Taliparamba, in wrongly fixing the survey boundary. To a query by this Court as to whether his predecessor-in-interest had raised such a contention in the earlier suits, it was submitted that **R.S.A.No.242 of 2024** 10 though raised, it was never considered by the trial court or the appellate court and hence there is no bar in filing the present suit. If such a contention had been taken up and the same had not been considered by the trial court, the same ought to have been challenged in the appeal. Instead of resorting to said course, the plaintiff cannot file a fresh suit on the ground of fraud alleged to have been committed by the Taluk Surveyor in wrongly fixing the survey boundary. The case of the plaintiff is not that the decree in the earlier suits was obtained by fraud or collusion between the parties to the litigation. On the other hand, his case is that the survey boundary line was wrongly fixed by the then officer concerned colluding with defendants 1 and 2. Therefore the dictum relied on by the learned counsel for the plaintiff/appellant is not applicable to the facts of the present case. 9. The plaintiff/appellant does not dispute the fact that the property/subject matter involved in the present suit and the earlier suits is one and the same. It is also admitted that the earlier suits **R.S.A.No.242 of 2024** 11 have been filed by the father of the plaintiff and that it was subsequent to the same and after the decree in the second appeal, the gift deed was executed by the father in favour of the plaintiff relating to a portion of the disputed property. It is also not disputed that the relief claimed in the present suit is the very same relief claimed by his father from whom he obtained plaint A _res_ schedule property. As per Section 11 CPC, the principle of _judicata_ comes into play when the matter was directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try the subsequent suit or the suit in which such issue had been subsequently raised and has been heard and finally decided by such Court. The plaintiff has no case that the courts which decided the earlier suits were not competent. Admittedly the earlier suits were filed by the plaintiff's father through whom the plaintiff claims title and possession over the disputed property. The property or the subject **R.S.A.No.242 of 2024** 12 matter involved in the present suit and the earlier suits are also admittedly the same. That being the position, the principle contemplated under Section 11 CPC is clearly attracted. The trial court and the first appellate court has properly and correctly appreciated the oral and documentary evidence in arriving at such a conclusion. 10. In addition to the above, the trial court has also found the suit to be barred by limitation. Before the first appellate court, the challenge was confined to the finding of the trial court that the suit was hit by _res judicata_ . The remaining challenges raised against the judgment and decree were not pressed at the time of hearing. In the appeal memorandum it is alleged that the plaintiff/appellant had never authorised his lawyer to give up the said contentions and without his instructions, the lawyer had no right to give up such contentions. Reference has been made to the dictum in **Jayaprakash K.R. v. State of Kerala (2023(4) KHC 354)** to canvass the point that a wrong concession/statement/ **R.S.A.No.242 of 2024** 13 admission/compromise/settlement made without obtaining instructions from the client would not bind the party. 11. I find no reason to disbelieve the first appellate court _res_ that except for the challenge against the finding of bar of _judicata_ , the remaining contentions had been given up by the plaintiff at the time of arguments. However, for argument sake, I shall assume for a moment that the said argument is right and proceed to consider the plea of limitation. The trial court found that as per Article 58 of the Limitation Act, 1963, the period of limitation starts when the right to sue first accrued. It was noticed that nowhere in the plaint, the date when the cause of action arose had been mentioned. In the absence of specific pleadings to the said effect, the trial court examined and analysed the entire pleadings to ascertain the alleged cause of action. Going by the averments in the plaint, the Taluk Surveyor is stated to have wrongly fixed the survey boundary, which was rectified as per order dated 20/10/1992 of the District Survey Superintendent. **R.S.A.No.242 of 2024** 14 The plaintiff never had a case that he was not aware of the fixation or refixation of the survey boundary till the filing of the present suit or that he came to know about the fixation of the boundary much later on. As noticed earlier in O.S.No.110/2002 filed by the plaintiff's father, the relief sought for was to declare that the order of the District Survey Superintendent refixing the survey boundary was the correct boundary. The said suit was admittedly dismissed. The trial court therefore found that the cause of action in the present suit which is the same as in the earlier suits filed by the father of teh plaintiff, had arisen in the year 1992 itself. However, the present suit was filed only in the year 2008 and therefore the suit was clearly barred by limitation. I do not find any error or mistake committed by the trial court in arriving at such a finding. Both the courts on a thorough appreciation of the oral and documentary evidence has rightly arrived at the conclusion that the suit is barred by _res judicata_ ; filed beyond the period of limitation and also that the plaintiff had failed in **R.S.A.No.242 of 2024** 15 establishing the identity of plaint B schedule property. No substantial questions of law as contemplated under Section 100 arises in this second appeal and hence the appeal is liable to be dismissed _in limine_ and I do so. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA JUDGE** ami/