M.S. Vasumathy Amma (deceased) and others v. K. Sivadas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID** **TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932** **SA.No. 516 of 1996(C)** **-------------------------------** **AS.17/1987 of PRINCIPAL SUB COURT,ALAPPUZHA OS.292/1983 of ADDL.MUNSIFF COURT, ALAPPUZHA** **....................** ## **APPELLANT(S): RESPONDENT/ PLAINTIFF** **---------------------------------------------------------------** ## ***M.S.VASUMATHY AMMA, VADAYIL BANGLAW, SOUTH ARYAD MURY, ARYAD SOUTH VILLAGE, RESIDING AT PADMA VILASATHU HOUSE, MAHADAVIKAD MURY, KARTHIKAPPALLY TALUK. (DIED)** ## ***ADDL. APPELLANTS 2 TO 7 IMPLEADED** **2. P.JAYARAJ, PADMAVILASATHU HOUSE, MAHADEVIKAD MURI, MAHADEVIKAD VILLAGE, MAHADEVIKAD P.O., KARTHIKAPPALLY TALUK, ALAPPUZHA DISTRICT.** **3. P.MOHANRAJ, DO. HOUSE, DO. DO.** **4. M.V.JAYASREE, RESIDING AT KARASSERY HOUSE, MEZHUVELI MURI, KIDANGOOR VILLAGE, KIDANGOOR P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **5. ISHA NATESAN, KRISHNAVILASATHU HOUSE, KURISINMOODU P.O., CHANGANASSERY MURI, CHANGANASSERY VILLAGE, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.** **6. LEKHA SUBASHCHANDRAN, PADMAVILASATHU HOUSE, MAHADEVIKAD MURI, MAHADEVIKAD VILLAGE, MAHADEVIKAD P.O., KARTHIKAPPALLY TALUK ALAPPUZHA DISTRICT.** ## **S.A. NO.516/1996** **7. PADMAJA PRATAPACHANDRAN, STEELEX HOUSE, NALUMUKKU, PETTAH MURI, PETTAH VILLAGE, PETTAH PO., THIRUVANANTHAPURAM TALUK. THIRUVANANTHAPURAM DISTRICT.** ***ADDL. APPELLANTS 2 TO 7 ARE IMPLEADED AS PER ORDER DT. 25.1.2010 IN IA. 52/2010.** **BY ADV. SRI.P.S.KRISHNA PILLAI** ## **RESPONDENT(S): APPELLANT/ DEFENDANT** **---------------------------------------------------------------** **K.SIVADAS, 9 FEET MECHANICAL WORKS, ZILLA COURT WARD, ALLEPPEY.** **BY ADV. SRI.P.R.VENKETESH SRI.AZAD BABU** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ORDER ON CMP. NO.1462/1997 IN SA. NO.516/1996** ## **DISMISSED** **14/09/2010** **SD/- HARUN -UL-RASHID, JUDGE** **TRUE COPY** **P.A. TO JUDGE** **tss** ## **HARUN-UL-RASHID, J. -----------------------S.A.No.516 Of 1996 ---------------------Dated this the 14[th] day of September, 2010.** ## **J U D G M E N T** The plaintiff in O.S.No.292 of 1983 on the file of the Additional Munsiff Court, Aleppey, is the appellant. The appeal is directed against the judgment and decree in A.S.No.17 of 1987 of the Principal Sub Court, Aleppey. Suit was filed for a mandatory injunction directing the defendant to remove item No.2 shed and in case of failure of the defendant to do so permitting the plaintiff to have the same removed through the court and to realise the expenses for it. Plaintiff also prayed for issuing a prohibitory injunction restraining the defendant from putting up new structures in plaint schedule item No.1 or making modifications or additions to plaint schedule item No.2. The trial court decreed the suit as prayed for. The lower appellate court set aside the decree and judgment and dismissed the suit. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. The subject matter of the suit and the dispute between the parties is in respect of item No.2 shed standing in item No.1 ## **S.A.No.516 Of 1996** ::2:: property. Admittedly, item No.1 property belongs to the plaintiff. There is a building in item No.1 property. The said building was rented out in favour of the defendant by a rent deed dated 22.6.1968 for running a mechanical workshop. The defendant as a tenant is running the mechanical workshop. Plaintiff’s case is that item No.2 shed was put up by the tenant without the consent or knowledge of the plaintiff. There were two suits between the parties earlier to the present suit. The defendant in the present suit had filed O.S.No.7 of 1975 for a decree of perpetual injunction to restrain the present plaintiff from demolishing the shed described as item No.2 in the present suit. The plaintiff herein had filed O.S.No.124 of 1975 against the defendant for a mandatory injunction to remove the shed which is item No.2 herein and for a decree of permanent prohibitory injunction restraining the defendant from putting up further structures or making extension to item No.2. Both suits were tried together. By judgment and decree dated 30.5.1977 the trial court dismissed O.S.No.7 of 1975 and partly decreed O.S.No.124 of 1975 restraining the respondent herein from ## **S.A.No.516 Of 1996** **==> picture [20 x 9] intentionally omitted <==** collecting and storing material in plaint item No.1 or obstructing the plaintiff’s possession or enjoyment etc. 3. The plaintiff filed the present suit stating that effective remedy for removal of plaint schedule item No.1 can be had only by a separate suit and hence the suit is filed for mandatory injunction for removal of plaint schedule item No.2. The plaintiff also prayed for a prohibitory injunction restraining the defendant from putting up new structures or additions to item No.2 4. The defendant denied the material averments in the plaint and prayed for dismissal of the suit. It is contended that there is no shed belonging to the plaintiff in the plaint schedule property. According to the defendant, since the entire goods for the workshop could not be stored in the tenanted building, they have constructed a shed. It is contended that the occupation of the shed by the defendant is on the basis of a licence and that the transaction is an irrevocable licence coupled with interest. It is also contended that the present suit is barred by the principle of res judicata since the prayer for removal of shed in the earlier suit was negatived and therefore the present suit filed for the ## **S.A.No.516 Of 1996** ::4:: very same relief on the very same cause of action is hit by the principle of res judicata and the suit is barred under Order II Rule 2 of the CPC. The defendant also contended that the transaction in between the plaintiff and defendant is one coming under Section 106 of the Kerala Land Reforms Act and therefore the defendant is entitled to the benefit thereof and the suit has to be referred to the Land Tribunal. The plaintiff filed a replication in reply to the averments in the written statement. Plaint item No.1 is having an extent of 21.745 cents. Admittedly, the building in occupation of the defendant as a tenant is situated in item No.1 property. Item No.2 is the shed which according to the plaintiff is constructed by the defendant without the knowledge and consent of the plaintiff. The prayer in the suit is mainly for a mandatory injunction directing the defendant to remove the item No.2 shed which is in his occupation. It is also not disputed that the plaintiff and defendant filed suits against each other before the same court. The shed referred to in the earlier suits is item No.2 shed in the present suit. Trial court by a common judgment dated 30.5.1977 disposed of the two suits. Ext.A1 is the ## **S.A.No.516 Of 1996** **==> picture [20 x 9] intentionally omitted <==** common judgment. The plaintiff in O.S.No.124 of 1975 contended that the disputed shed is an unauthorized construction. The tenant/defendant contended that the shed was constructed in 1970 with the consent and knowledge of the husband of the plaintiff. The court observed that during the time of construction of the shed and thereafter till Ext.B2 dated 17.6.1974 such construction of the shed was not objected to by the plaintiff or her husband and the shed was allowed to be constructed in the name of the husband of the plaintiff. The court concluded that the construction of the shed by the defendant was with the acquiescence of the plaintiff and her husband. The court also held that though the original rental arrangement was with respect to one shed, the plaintiff and husband acquiesced to the construction of two other sheds. By their conduct, those constructions cannot be held to be unauthorized in the circumstances. On the basis of the said finding the relief of mandatory injunction was refused. 5. In the connected suit filed by the defendant as O.S.No.7 of 1975 the prayer was to restrain the defendant from ## **S.A.No.516 Of 1996** ::6:: interfering with the possession of their structures and from demolishing the structures. The court recorded the submission of the defendant in O.S.No.7 of 1975 (plaintiff in the present suit) that they have no idea to interfere with the possession of the defendant of the structures as a tenant and to demolish the structures otherwise than by due process of law. The court observed that there is no evidence to show that the present plaintiff had never attempted to interfere with the possession of structures as a tenant or to demolish the structures. The civil court dismissed O.S.No.7 of 1975 and decreed O.S.No.124 of 1975 holding that the present plaintiff have no idea to interfere with the possession of the structures by the defendant and to demolish the structures otherwise than by due process of law. The court declared that the defendant in O.S.No.124 of 1975 is entitled to be in possession of the structures until the leasehold right is terminated by appropriate proceedings sanctioned by law. 6. After disposal of the above two suits, the plaintiff filed R.C.P.No.72 of 1982 praying for eviction of the tenant from the tenanted premises (one of the sheds) and also for evicting him ## **S.A.No.516 Of 1996** ::7:: from the shed which is item No.2 shed in the present suit. Ext.A2 dated 19.3.1984 is the order passed by the Rent Control Court. The Rent Control Court allowed the RCP and granted eviction. Under orders from the Rent Control Court, the defendant was evicted from the plaint schedule item No.1. It is submitted by the counsel for the plaintiff that pursuant to A2 order the tenant was evicted from the tenanted premises. As regards the shed which is the subject matter of the present suit the Rent Control Court held that the remedy of the plaintiff is to file a civil suit and he is not entitled to any remedy under the Rent Control Act. The above said circumstances led to the filing of the present suit. 7. In the plaint it is pleaded that the effective remedy for mandatory injunction can be obtained by the plaintiff only by filing the present suit. The trial court after considering the contentions of the contesting parties held that the plaintiff is in possession and she is the owner of the plaint schedule property and other sheds and that the decision in Ext.A1 will not be a bar for filing the present suit and the principle of res judicata is not ## **S.A.No.516 Of 1996** ::8:: attracted. The lower appellate court also found that the possession of the land is with the plaintiff in Ext.A1 judgment, that there is no leasehold right over the property wherein the shed was put up. The trial court also found that since the defendant cannot claim any right over itemNo.1 property, he is not entitled to claim the benefits under Section 106 of the Kerala Land Reforms Act. The court observed that the user of the land is only permissive. In Ext.A1 the court held that the construction of item No.2 shed was with the acquiescence of the plaintiff and her husband. In Ext.A1, the court recorded the submission of the plaintiff herein that they have no idea to evict the defendant from the item No.2 shed as well unless otherwise than by due process of law. Taking into account all these facts the trial court held that the plaintiff is entitled to sue for the relief claimed in the present suit and the suit is not barred by res judicata. The trial court also examined the question as to whether the contention of the defendant that he is entitled to the benefits under Section 60B of the Easement Act is tenable. The trial court on facts held that there was no arrangement between the plaintiff ## **S.A.No.516 Of 1996** ::9:: and defendant granting a licence in respect of any portion of land or structures and that the defendant has failed to prove that there is a licence arrangement between the parties. There is no material to prove that there was a licence arrangement between the parties. The civil court in the earlier suits found that during the time of construction of the shed and thereafter, neither the husband of the plaintiff nor the plaintiff objected the construction. The said circumstance led to the conclusion that the plaintiff and her husband acquiesced by their conduct in construction of the shed by the defendant. The civil court in the earlier common judgment held that there is acquiescence on the part of the plaintiff’s husband. Apart from taking up the contention that there is a licence and that it is an irrevocable licence, the defendant had not chosen to give any evidence in support of his contention. Moreover from the materials on record, there is no evidence adduced in support of such contention. The facts and circumstances discussed above would prove that there was no licence arrangement between the parties. In the circumstances, the trial court granted the prayer of mandatory injunction ## **S.A.No.516 Of 1996** **==> picture [26 x 9] intentionally omitted <==** directing the defendant to remove item No.2 shed and also prohibited him from putting up any new structures in item No.1 or making modifications or addition to plaint item No.2. 8. Before the first appellate court the defendant contended that the suit is hit by res judicata in view of the decision in O.S.No.124 of 1975. He also contented that the lower appellate court ought to have referred the appellant’s claim under Section 106 of the Kerala Land Reforms Act to the Land Tribunal. The appellate court referred to the two contentions and observed that these are the two contentions canvassed before it. The appellant also contended before the court below that the remedy open to the plaintiff is not to sue for mandatory injunction but to file a suit for recovery of possession of the property wherein the item No.2 shed is situated. The appellate court also observed that at the time of hearing in the appeal the question of irrevocable licence is not canvassed by the appellant. The court considered the question as to whether the suit is barred by res judicata in view of the decision in O.S.No.124 of 1975. The appellate court held that on going through the ## **S.A.No.516 Of 1996** **==> picture [26 x 9] intentionally omitted <==** averments in the present plaint and the plaintiff’s case in O.S.No.124 of 1975 what can be gathered is that it is on the very same state of affairs relief of mandatory injunction was sought by the respondents and in that circumstance, based on the very same cause of action the relief of mandatory injunction was sought on the respondent’s side. The court also held that Order II Rule 2 of the CPC precludes the plaintiff from claiming same relief on the same facts. The court held that Section 11 CPC and Order II Rule 2 are bar against the present suit. This court in detail discussed the scope and impact of the findings recorded by the civil court in O.SNo.124 of 1975. Ext.A1 is the judgment. The observations and findings regarding item No.2 shed was discussed in detail in preceding paragraphs. It is clear from the observations and findings in Ext.A1 judgment that the relief of mandatory injunction was not granted after recording the submission of the plaintiff in O.S.No.124 of 1975 that they have no idea to demolish the structures standing in present plaint item No.1 until the defendant is evicted from the tenanted premises by due process of law. The defendant cannot retain possession and ## **S.A.No.516 Of 1996** ::12:: enjoyment of plaint item No.2 shed indefinitely without any manner of right. He has no right over the property in question. It has come out in evidence that the shed was constructed by him near to the tenanted premises. The civil court in the earlier suits also found that there was no consent on the part of the landlord for the construction of the shed. The court said by the conduct of the husband of the plaintiff and the plaintiff they have acquiesced to the construction of the shed. That does not mean that the plaintiff is precluded from suing for eviction of the person who continued to occupy the item No.2 shed. Learned counsel for the appellant also brought to the notice of this Court the decision reported in _**Kunjan Nair Sivaraman Nair v. Narayanan Nair**_ (2004(1) KLT 1082 SC). Learned counsel referred to Order II Rule 2(3) and the principles laid down by the Apex Court in paragraph 8 of the judgment. The Apex Court held that so far as sub Rule 3 is concerned, before the second suit of of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is ## **S.A.No.516 Of 1996** ::13:: the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. The Apex Court also relied on the decision of the Constitution Bench in _**Gurbux Singh v. Bhooralal**_ (1964 (7) SCR 831). The Constitution Bench has laid down as follows: _“In order that a plea of a bar under Order II Rule 2(3), Code of Civil Procedure should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled more than one relief the plaintiff, without leave obtained from the court, omitted to sue for the relief which the second suit had been filed.”_ The Constitution Bench also held that _“a plea of bar under Order II Rule 2 CPC can be established only if the defendant filed in evidence the pleading in the previous suit and thereby proves to the court the identity of the cause of action in the two suits.”_ **S.A.No.516 Of 1996** **==> picture [26 x 9] intentionally omitted <==** 9. I have discussed in detail the facts and circumstances leading to the filing of the earlier suits and the circumstance that led to the filing of the present suit. By no stretch of imagination the present suit is hit by the principles of res judicata nor the bar under Order II Rule 2 CPC is attracted. In the circumstances, the plaintiff is entitled to the reliefs claimed in the suit. In the result, the appeal is allowed. The judgment and decree passed by the lower appellate court is set aside and the decree passed by the trial court is restored. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-