Muhamed Kombanthodika v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 MFA (FOREST) NO. 57 OF 2015** **OA 41/2011 OF FOREST TRIBUNAL, KOZHIKODE DTD.30.03.2015** ## **APPELLANT/APPLICANT:** MUHAMED KOMBANTHODIKA S/O. KUNHEEN KODALIPOYIL EDAKARA, P.O. BHOODHANAM ERNAD EDAKARA VILLAGE, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.S.KANNAN ## **RESPONDENTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM – 695 001. 2 THE DISTRICT FOREST OFFICER (SPECIAL DIVISION), NILAMBUR – 679 329. 3 THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD- 676 002. 4 KOMBANTHODIKA HUSSAIN, S/O. KUNHEEN IN EDAKARA, AMSOM KODALIPOYIL DESOM, BHOODANAM COLONY, CHUNGATHARA, NILAMBUR - 679 329. SRI.NAGARAJ NARAYANAN, SPL. G.P. (FORESTS) **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A (Forest) No.57 of 2015 ..2.. ## **''C.R''** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A (Forest) No.57 of 2015 ------------------------------------------------------------Dated this the 06[th] day of February, 2023 ## **JUDGMENT** ## C.Jayachandran, J. This appeal poses the question whether the judgment against one co-owner in a previous suit would operate as _res judicata_ against the other in a subsequent suit? By the order impugned, the Forest Tribunal, Kozhikode dismissed O.A.No.41/2011 holding that the application is barred by the principles of _res judicata,_ inasmuch as an earlier application, O.A.No.7/1986, preferred by the applicant's brother, a coowner, was dismissed, which order (Ext.B3) had attained finality. The aggrieved applicant is the appellant. **2.** The brief facts, shorn off unnecessary details, are as follows:- The application is one under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, M.F.A (Forest) No.57 of 2015 ..3.. 'the Vesting Act'). The applicant averred that the scheduled property belongs to the applicant and the 4[th] respondent jointly. The property was being managed by the applicant's father, since he was employed at Gulf. The scheduled property was originally planted with cashew by the predecessors-ininterest of the applicant, whereafter, the same was converted into a rubber plantation. The disputed property is a cultivated land and not a private forest, which vested with the Government under the Act 26 of 1971. The forest officials obstructed the user of the property on 27.10.2011. The applicant also alleged that O.A. No.7/1986 was preferred by his brother/the 4[th] respondent herein without his knowledge and that the same happened to be dismissed, since it was not prosecuted properly by his brother. Even the title to the property was not pleaded. The order passed in the said O.A. is not binding on the applicant. On such premise, the applicant sought for a declaration that the scheduled property is not a private forest, which vested with the Government. Alternatively, the applicant claimed exemption under Section 3(3) of the Vesting Act. M.F.A (Forest) No.57 of 2015 ..4.. **3.** The Divisional Forest Officer concerned filed counter affidavit contending that the scheduled property forms part of a huge _malavaram_ known as Ex-Gwalior Rayons Forest, having an extent of 12215.68 hectares. It was notified as a vested forest as per notification no.82055/FS2-1/76/AD dated 11.1.1977. The property was not cultivated with cashew as on 10.5.1971. Nor was it converted to a rubber plantation thereafter. The respondent specifically pleaded that the present application is barred by _res judicata_ in view of the Order passed in O.A.No.7/1986, which was confirmed by the High Court in M.F.A.No.496/1989 and thereafter, by the Hon'ble Supreme Court in S.L.P.No.22831/1997. On such premise, the respondent sought for dismissal of the O.A. **4.** The evidence in this case consists of Exts.A1 to A19, supported by the oral evidence of the applicant, as PW1. On behalf of the respondent, the Forest Range Officer concerned was examined, through whom Exts.B1 to B4 were marked. The Commissioner's reports and plan were marked as Exts.C1, C2 and C2(a) respectively. M.F.A (Forest) No.57 of 2015 ..5.. **5.** The Tribunal found, as it indicated earlier, that the present O.A. is barred by the principles of _res judicata_ in view of the order in O.A.No.7/1986, which attained finality. **6.** Heard Sri.Firoz.K.M., learned counsel for the appellant and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **7.** We notice that the proceedings which led to Ext.B3 order was also under Section 8 of the Vesting Act preferred by the brother of the present applicant, the 4[th] respondent in the present O.A. The pleadings in O.A.No.7/1986 and the present O.A. are substantially similar, except in respect of an oral lease claimed from the Nilambur Kovilakam. In the earlier O.A. the lease was claimed in favour of the father of the applicant, whereas in the present O.A, the lease was in the name of one Aboobacker, who, in turn, entrusted the scheduled property in favour of the applicant and the 4[th] respondent in the present O.A. Suffice to note that in both the O.As, the applicant and the 4[th] respondent were pleaded to be co-owners of the M.F.A (Forest) No.57 of 2015 ..6.. scheduled property. The reliefs sought for in both the proceedings are the same. By virtue of Ext.B3 order, the earlier O.A. was dismissed, which was confirmed by the High Court by virtue of Ext.B4 judgment in M.F.A. No.496/1989. The Tribunal in the impugned order also took note that S.L.P.No.22831/97 carried from Ext.B4 order was also dismissed. Thus, Ext.B4 order, dismissing the claim under Section 8 of the Vesting Act, has attained finality. **8.** The solitary point which requires consideration is whether Ext.B3 order would operate as _res judicata_ as against the present applicant, who was not a party to Ext.B3 proceeding, but is a co-owner of the scheduled property along with the 4[th] respondent (the applicant in the earlier O.A.). We may straight away refer to Explanation VI to Section 11 of the Code of Civil Procedure, which is extracted herebelow: ## _“_ **11. Res judicata** _xxx xxx xxx_ _Explanation VI. -- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all_ M.F.A (Forest) No.57 of 2015 **==> picture [22 x 8] intentionally omitted <==** _persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating .”_ **9.** The issue fell for consideration before the Hon'ble Supreme Court in **Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu** [AIR 1977 SC 1268]. In that case, there were two suits, one preferred by one of the sons of Narayana Prabhu against other legal heirs for partition of the assets left by Narayana Prabhu; and other, a suit for money preferred by the 1[st] defendant in the partition suit against his brother (3[rd] defendant in the partition suit) towards value of the tobacco supplied by the plaintiff to the defendant. Both suits were jointly tried. The partition suit was allowed, excluding certain items claimed as self acquisitions of the 1[st] defendant in that suit. The money suit was also decreed. Both the decrees were challenged in appeal before the High Court. The High Court negated the plea of self-acquisitions by the 1[st] defendant and passed preliminary decree of partition of those items as well. Finding that the tobacco trade claimed by the 1[st] defendant as part of the joint family business, the money suit M.F.A (Forest) No.57 of 2015 ..8.. was dismissed. Challenging the preliminary decree for partition an appeal was carried to the Hon'ble Supreme Court. However, the decree dismissing the money suit was not appealed against. The question before the Hon'ble Supreme Court was whether the decree in the money suit, which was only against one of the legal heirs of Narayana Prabhu (3[rd] defendant in that suit) would operate as _res judicata_ against the appellant before the Supreme Court. Relying upon Explanation VI to Section 11, the Supreme Court answered the issue in the affirmative as follows: _"We think that the submission made by the learned counsel for the respondents is sound. In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims. If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others". Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical. If we were to hold otherwise, it would necessarily mean that there would be two inconsistent decrees. One of_ M.F.A (Forest) No.57 of 2015 ..9.. _the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here"._ **10.** The dictum laid down in **Narayana Prabhu** (supra) was followed by a Division Bench of this Court in **Velayudha Pillai Raman Nair v. Krishnan Asari Many** [1988 (2) KLT 472]. In that case a mortgage was executed by Krishnan Asari in favour of the defendant. Pursuant to the death of Krishnan Asari, the plaintiff sued as his legal heir. A previous suit, O.S.No.586/1967, preferred by the two wives and nine children of deceased Krishnan Asari was dismissed. The Division Bench held that judgment of the previous suit would operate as _res judicata_ as against the plaintiff in the subsequent suit, though he was not a party in the earlier suit. The Division Bench relied upon Explanation VI to Section 11, as also the dictum laid down in **Narayana Prabhu** (supra). M.F.A (Forest) No.57 of 2015 ..10.. **11.** In view of the authoritative pronouncement of the Hon'ble Supreme Court in **Narayana Prabhu** (supra), followed by this Court in **Velayudha Pillai** (supra), we hold that Ext.B3 order of the Tribunal, which attained finality, operates as _res judicata_ as against the present applicant/appellant. It is noteworthy that the applicant in the earlier O.A. had very much pleaded that he is only a co-owner, along with the applicant in the present O.A. and he sought for a declaration that the scheduled property co-owned by them is not a private forest. If the O.A. was allowed granting the declaration sought for, it goes without saying that the benefit of the order would enure to the benefit of applicant/appellant herein as well. As a necessary corollary, the dismissal also should bind him. We cannot but find that the applicant in the earlier O.A. was litigating a private right, claimed in common for himself and the applicant/appellant herein, which squarely brings the situation within the ambit of Explanation VI to Section 11. We discount the allegation that the earlier O.A. was not prosecuted bonafide and diligently, as we notice that the applicant therein chose to carry the challenge against M.F.A (Forest) No.57 of 2015 **==> picture [28 x 8] intentionally omitted <==** Ext.B3 order right upto the Supreme Court, which effort cannot, by any reckoning, be treated as not bonafide. We find no reason to interfere with the order impugned of the Tribunal, which rejected the subsequent O.A. on the principles of _res judicata._ We reject the appeal, leaving the parties to bear their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** skj