Madhavan Pillai Surendran Nair v. Lekshmi Pillai Sarasamma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 SA.No. 975 of 2000(G) --------------------AS.61/1991 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.332/1989 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANT/3RD RESPONDENT/3RD DEFENDANT : ------------------------------------------------------------------------ MADHAVAN PILLA SURENDRAN NAIR, AGED 40 SURABHI BHAVAN, EDAKKODE DESOM, PALLICHAL VILLAGE BY ADV. SRI.L.MOHANAN RESPONDENTS/APPELLANT AND RESPONDENTS 1,2,4,6 & 7, PLAINTIFF AND DEFENDANTS 1,2,4 AND LRS OF D5 ------------------------------------------------------------------------------------1.LEKSHMI PILLAI SARASAMMA, SARASA NILAYAM EDAKKODE DESOM, PALLICHAL VILLAGE 2. KESAVAN THAMPI GOPINATHAN NAIR, KOTTARATHALA )( DIED & LEGAL HEIRS MELE LALITHA BHAVAN, EDAKKODE DESOM )( IMPLEADED AS ADDL. PALLICHAL VILLAGE )( R7 TO R10 3. KRISHNA PILLAI KUTTAPPAN NAIR VIJAYAMANDIRAN, DO- DESOM, DO VILLAGE 4. MADHAVAN PILLAI, MANALU VILA VEEDU, DO – DESOM 5. AMBIKA DEVI, SARASA NILAYAM, EDAKKODE DESOM PALLICHAL VILLAGE 6. S SAKTHIDHARAN NAIR, -DO- SA 975/00 -2- ADDL.R7 TO R10 7. P.LALITHAMMA, RESIDING AT LALITHA BHAVAN EDAKKODE DESOM, NEMOM PO 8. L.LATHIKA OF -DO- 9, G.ANILKUMAR OF -DO- 10.L.LATHA DEVI OF -DO- (ADDL.R7 TO 10 ARE IMPLEADED THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER DT.7.6.2011 ON IA NO.1368/2003) ADV. SRI.R.S.KALKURA FOR R1 SRI.P.C.HARIDAS FOR R5 & R6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.08.2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------- SA No.975 of 2000-G ------------------------------------Dated this the 4[th] day of August 2011 ## Judgment The third defendant in OS No.332/89 before the Munsiff's Court, Neyyattinkara, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, the plaint schedule property was allotted to the share of Gopala Pillai Parameswaran Nair as T plot in Ext.A3 plan which was appended to the decree in OS No.79/1120. That was a suit for partition. By a subsequent assignment, it came to vest with the plaintiff by Ext.A2. The plaintiff and the 5[th] defendant, who is her husband, had executed a mortgage and obtained its release as per Ext.A1 release deed. According to the plaintiff, she is in absolute possession and enjoyment of the suit property. It is admitted in the plaint that on the southern and western sides of the plaint SA 975/00 2 schedule properties, there are pathways. According to the plaintiff, the defendants own properties on the western and southern sides beyond the pathways, which separate the two properties. There is a suit between the first and the 5[th] defendants as OS No.46/85. It is claimed that in that suit, the property and the pathway were measured without reference to Ext.A3. Alleging that taking advantage of the decree in OS No.46/85, the defendants are trying to trespass into the suit property, the suit was laid. After the filing of the commissioner's report, the plaint was amended, incorporating the prayer for recovery of possession on the strength of title. 3. Defendants 1, 2, 4 and 5 chose to stay away from court. The third defendant filed a written statement pointing out that the plaint description is not correct. It was pointed out that the plaintiff is bound by the decree in OS No.46/85 though, she is not a party to that suit. The pathway which is admitted by the plaintiff has been used by them for more than 70 years and it is an admitted case, SA 975/00 3 according to the third defendant that the plaintiff did not have property on the western side of the pathway. In OS No.46/85, the issue relating to the pathway was considered by the court and a decree was granted in favour of the plaintiff in that suit. On these contentions, the third defendant prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. Neither side chose to adduce any oral evidence. The plaintiff was satisfied by having Exts.A1 to A5 marked and the defendants, by having Ext.B1 to B3 marked. Exts.C1 and C2 commissioner's report and plan were also marked. No oral evidence was adduced. 5. On an evaluation of the evidence on record, the trial court found that even though a portion of the property, going by the side measurements, shown in Ext.A3 plan would fall on the western side of the pathway noticed by the commissioner, since the plaintiff had no case that the contesting defendant had trespassed into the SA 975/00 4 plaintiff's property and cut open a new pathway through her property, the relief as far as the portion of property situate on the western side of the pathway could not be granted. Therefore, the trial court confined the relief to the plaintiff to the properties situate on the eastern side of the pathway. 6. The plaintiff went up in appeal as AS No.61/91 before the District Court, Thiruvananthapuram. The lower appellate court granted a decree in respect of the property situate on the western side of the pathway also. Assailing the said judgment and decree, this second appeal is filed. 7. Notice is seen issued on the following questions of law raised in the second appeal : - 1.Is it not illegal to admit an incomplete document into evidence and decree the suit on its basis ? - 2.Is it not illegal to allow recovery of property and to put up boundary without proof of title to the same ? - 3.Is it not illegal to find trespass when there is no pleading or proof to that effect ? SA 975/00 5 4.Is it not illegal to discard a previous decree which binds the title of the parties ? 5.Is it not illegal to travel beyond pleadings ? 8. Shri.L.Mohanan, learned counsel for the appellant pointed out that the lower appellate court was not justified in coming to the conclusion that the plaintiff is entitled to relief in respect of the property shown by the commissioner on the western side of the pathway. The existence of the pathway was admitted by the plaintiff and it is also seen to be so from Ext.A3 produced by the plaintiff. Of course, the learned counsel pointed out that Ext.A3 should not have been taken in evidence as it is only a photocopy and the decree to which it is alleged to be appended has not been produced. The learned counsel also pointed out that the plaintiff had no case that the defendants had altered the lie of the pathway shown in Ext.A3 and that they had trespassed into the plaint schedule property and cut open a pathway changing the lie of the way as shown in Ext.A3. Under such circumstances, SA 975/00 6 the lower appellate court was not justified in granting a decree in respect of a portion of the property that fell on the western side of the pathway shown in Ext.C2 plan also. The result of the modified decree granted by the lower appellate court is that a portion of the pathway is cut off and the defendant is left out without any access. It is also contended that the plaintiff is bound by the decree in OS No.46/85. 9. The learned counsel for the respondents Sri.R.S.Kalkura, on the other hand, pointed out that it is fallacious to say that the plaintiff is bound by the judgment and decree in OS No.46/85. The theory of substantial representation could not be applied in the case on hand, so says the counsel. The learned counsel also pointed out that no exception can be taken to the decree passed by the lower appellate court since what has been done by the lower appellate court is only to grant relief in respect of the property shown as T plot in Ext.A3 plan. The appellants can have no grievance regarding the decree, since it is an SA 975/00 7 admitted fact that T plot shown in Ext.A3 has ultimately come to vest with the plaintiff. 10. The first question that arises for consideration is whether the decree in OS No.46/85 acts as res judicata. Sri.L.Mohanan, learned counsel for the appellant relied on the decisions reported in **Rena Drego v. Lalchand Soni** (1998) 3 SCC 341) and **Hameed v. Sumithra** (1987(1) KLT 308) and contended that Ext.B3 which is the plan appended to the decree in OS No.46/85 can be looked into for the purpose of adjudicating the issue involved in the suit. It was a suit between the husband of the plaintiff who is one of the co-sharers in respect of the plaint schedule property as the defendant and the first defendant herein as the plaintiff. It was a suit for injunction. It would appear that the dispute in that suit related to a pathway and a decree was granted against the husband of the plaintiff. SA 975/00 8 11. Being a suit for injunction, it is difficult to accept the contention of the learned counsel for the respondents that the decree in OS No.46/85 is binding on the plaintiff. Of course, if an interest common to the plaintiff herein and also the defendant in OS No.46/85 was agitated in the earlier suit, probably, it could be said that the plaintiff is also bound by that decree. However, for that purpose, it is necessary for the person who sets up the claim of res judicata to produce the pleadings and also the judgment in the earlier suit so that this court will be in a position to understand the issues and the questions agitated in the earlier suit. 12. One fact becomes very evident from a perusal of Ext.B3 and it is that the plaint schedule property was not the subject matter of litigation in the earlier suit. It would also appear that it was with respect to the pathway which is shown in Ext.A3. In the absence of production of necessary documents, it could not be said that the decision in OS No.46/85 will be binding on the plaintiff in this case SA 975/00 also. 9 13. The respondents had no case either in the original plaint or in the amended plaint that the defendants had trespassed into any portion of the plaint schedule property and had cut open a pathway through the property of the plaintiff, changing the alignment of the pathway shown in Ext.A3 plan appended to the decree in the partition suit. It is significant to notice that the properties which were set apart to various sharers evidenced by Ext.A3 plan lie in the same survey number. It is also seen from Ext.A3 that plot T which is now claimed by the plaintiff is situate on the eastern and northern sides of the pathways shown in the plan. Going by Ext.A3 plan, it is very evident that the plaintiff could not have any property on the western and southern sides of the pathways. 14. As already noticed, the plaintiffs have no case that subsequent to their acquisition as per Ext.A2 or after Ext.B3 suit i.e. after the disposal of OS No.46/85, the defendants have changed the alignment of the pathway SA 975/00 10 and cut open a pathway through the property of the plaintiff. It is also significant to notice that two documents of title on which the plaintiff relies on, do not actually refer to the side measurements. They only refer to plot T set apart in the partition suit. The trial court took note of the fact that the plaintiff had no case that the plaintiff ever had any property on the western side of the pathway. It also took note of the fact that there is no allegation in the plaint even after the amendment that the defendants had changed the alignment of the pathway and cut open a pathway through the property of the plaintiff. In the absence of pleadings and evidence to that effect, the trial court felt that relief to the plaintiff should be confined to the property shown on the eastern side of the pathway noticed by the commissioner in Ext.C2 plan in the present suit. 15. The lower appellate court, on the other hand, without adverting to any of these aspects, merely based on the side measurements shown in Ext.A3 held that the commissioner has identified T plot in Ext.C2 plan and SA 975/00 11 granted a modified decree. While doing so, the lower appellate court omitted to note that there was no allegation in the plaint that the alignment of the pathway which was laid as per Ext.A3 plan had been changed by the defendants or that they had trespassed into any portion of the plaintiff's property to cut open a new pathway. The lower appellate court also failed to notice that by the decree now granted, the pathway stands cut off. These vital aspects have not been noticed by the lower appellate court and that court merely went by the measurements shown in Ext.A3 which is not reflected in Exts.A1 and A2. Whatever that be, it is felt that a fresh consideration is necessary at the hands of the lower appellate court since the above said vital aspects have been omitted to be noticed by the lower appellate court. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in SA 975/00 12 the light of what has been stated above. The parties shall appear before the lower appellate court on 03.09.2011. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within three months from the date of appearance of parties before court. **P.Bhavadasan, Judge** sta SA 975/00 13