Raphel alias Kunjappan v Anna Mary alias Judy and A.G Xavier

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934** ## **RSA.No. 233 of 2009 ( )** **----------------------AS.61/2007 of II ADDL.DISTRICT COURT, ERNAKULAM OS.275/2003 of III ADDL.M.C., ERNAKULAM** **------------------** **APPELLANT(S)/APPELLANT/DEFENDANT :- --------------------------------------** **RAPHEL ALIAS KUNJAPPAN, S/O.LATE JOSEPH, AGED 68, RESIDING AT KANJIRATHUMPARAMBIL, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK.** **BY ADVS.SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :-** **------------------------------------------** **1. ANNA MARY ALIAS JUDY, W/O.A.G.XAVIER, AGED 37, RESIDING AT ANCHANIKKAL HOUSE, ELAMKULAM VILLAGE, KANAYANNUR TALUK. 2. A.G.XAVIER, S/O.LATE GEORGE, AGED 30, RESIDING AT ANCHANIKKAL HOUSE, ELAMKULAM VILLAGE, KANAYANNUR TALUK.** **R1 & 2 BY ADV. SRI.A.BALAGOPALAN R1 & 2 BY ADV. SRI.A.RAJAGOPALAN R1 & 2 BY ADV. SMT.T.LAKSHMI R1 & 2 BY ADV. SRI.BASIL MATHEW R1 & 2 BY ADV. SMT.KALA G.NAMBIAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JVT** ## **N.K.BALAKRISHNAN, J. --------------------------------R.S.A. No.233 of 2009 --------------------------------Dated this the 1[st] day of February 2013** ## **J U D G M E N T** The defendant in a suit for recovery of possession is the appellant. The trial court granted a decree allowing the plaintiff to recover possession of the plaint schedule property shown as plot B in Ext.A3(a) plan (marked as Ext.C2(a) in O.S. 221/1998) after removal of the structure put up by the defendant in the said property. The appeal filed by him was dismissed by the appellate court. 2. Brief facts necessary for the case can be stated thus: The 1[st] plaintiff is the absolute owner of the plaint schedule property obtained as per Ext. A1 sale deed. Her husband, the 2[nd] plaintiff, is managing the said property. The defendant is having property on the western side. A suit was filed earlier as O.S.221/1998 for a mandatory and R.S.A. No.233 of 2009 -: 2 :- prohibitory injunction. Ext.B1 is the certified copy of the plaint in O.S.No.221/1998 and Ext.A4 is the certified copy of the judgment in that suit. It was found that the structures seen in the disputed property were put up by the defendant long prior to the institution of the suit and not after the suit as contended by the plaintiff and as such the prayer for mandatory injunction was dis-allowed. Hence, the present/ second suit was filed for recovery of possession on the strength of plaintiffs' title to the suit property. 3. The following substantial questions of law were raised by the appellant :- - (i) Are the courts below right in holding that the judgment in O.S.No.221/1998 which was in between the same parties does not operate as res judicata ? - (ii) Since the claim for recovery of possession on the strength of title was not raised in the earlier suit, are not the courts below bound to hold that the present suit is hit by Order II Rule 2 CPC ? - (iii)Are the courts below justified in granting a decree for recovery of possession ? 4. Learned counsel for the appellant submits that R.S.A. No.233 of 2009 -: 3 :- the present suit is virtually for the very same relief in view of the fact that there is a prayer for removal of the structures put up in the disputed plot, which is plot B shown in Ext.C2(a) plan in O.S.No.221/1998. But it is seen that the present suit is actually for recovery of possession of that area whereupon the structures were seen put up. In the earlier suit, the mandatory injunction was refused for the reason that the structures found thereon were put up long prior to the date of the suit and not just on the eve of the suit or after the suit. In other words, that part of the land whereupon the structures were put up were in the unauthorised possession of the defendant. 5. The cause of action for recovery of possession on the strength of title is totally different from the suit for mandatory injunction which was filed on the premise that the structures were constructed immediately after the filing of the suit or just prior to it. Since this suit is for recovery of possession of the property on the strength of title, the R.S.A. No.233 of 2009 -: 4 :- contention that the dismissal of the earlier suit for mandatory injunction would operate as res judicata cannot be sustained. 6. Learned counsel for the appellant has relied upon the decision in **Sumathy** v. **Dakshayani** [1987 (1) KLT 141] in support of the submission that even if the earlier decision was erroneous still the party was bound by the same. In that case it was held that a decision will not cease to be res judicata merely because the view of the law on which it was based ceased to represent the correct law owing to a later judicial pronouncement. Here, the question is entirely different. The earlier suit was founded on possession and the claim was for mandatory injunction and not for recovery of possession of the disputed plot, which was trespassed upon by the defendant, on the strength of the plaintiffs' title. Therefore, the aforesaid decision is inapplicable to the facts of this case. 7. The decision of the Full Bench of this Court in R.S.A. No.233 of 2009 -: 5 :- **Khalid** v. **Sulekha** [1986 KLT 1113 (F.B.)] has also been relied upon by the learned counsel to fortify his submission that if the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision between the parties, the decision on each of those points operates as res judicata between the parties. In the earlier suit, the question whether the plaintiff is having title to the suit property was not, in issue and so, it was not decided also. As such, **Khalid's** decision cited supra has no application to the facts of this case. 8. A perusal of Exts.B1 and A4 would make it clear that no decision was rendered in Ext.A4 suit against the title set up by the plaintiff. Since that suit is not for recovery of possession on the strength of title, the contention that the judgment in that suit operates res judicata against the plaintiff cannot be sustained. 9. A cause of action consists of all facts which are R.S.A. No.233 of 2009 -: 6 :- essential for the plaintiff to allege and establish, if denied or traversed by the defendant. It is a bundle of facts which taken with the law applicable to them gives him a right of some relief against the defendant. It would include some act done by the defendant because in the absence of any such act by the defendant, no cause of action can possibly accrue. In Halsbury's Laws of England (4th edition) it was described as : “ 'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.” Therefore, it can be seen that the expression 'cause of action' means every fact which would be necessary for the plaintiff to prove, if it has been denied by the defendant, in R.S.A. No.233 of 2009 -: 7 :- order to support the plaintiff's right to the judgment sought for. It takes in every fact which is necessary to be proved so as to get the relief sought for. 10. In **Josey Francis** v. **Sunoj K. Balan** [AIR 2009 Ker 188] the claim made by the plaintiff in the earlier suit was for injunction, the cause of action for which was the apprehension of the plaintiff that the defendant would alienate the suit property which was agreed to be sold to the plaintiff to somebody else whereas the cause of action in the latter suit for specific performance was the default of the defendant to perform his part of the contract and thus it was held that the causes of action for both suits are not one and the same though both suits were based on the agreement for sale executed by the defendant. 11. Learned counsel for the respondent would submit that where the cause of action for seeking a relief of recovery of possession on the strength of title was not available or necessary for the plaintiff at the time of filing R.S.A. No.233 of 2009 -: 8 :- the earlier suit the bar under Order II Rule 2 CPC cannot come into play at all. In other words, according to the respondents, the claim in the present suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit. In order to attract the bar under Order II Rule 2 CPC, it has to be established that there is identity of the cause of action and identity of the parties in both the suits. Even though here there is identity of the parties, there is no identity of the cause of action. If defendant threatens to do an act against the proprietary interest of the plaintiff then he (the plaintiff) may sue for declaration and for a consequential relief of injunction. Similarly if the defendant exercises any act of possession against the proprietary title or interest of the real owner his right to sue for recovery of possession begins and would continue till it is extinguished. Therefore, the cause of action for recovery of possession arises only when the defendant starts exercising possession of the disputed R.S.A. No.233 of 2009 -: 9 :- property in derogation of the plaintiff's title. That is totally different from the cause of action for filing a suit for mandatory injunction. When the plaintiff establishes his title to the plaint schedule property, then his right to recover possession of the same can be resisted only on the plea that the defendant has prescribed title by adverse possession and limitation set up by the defendant. 12. The main plank of the argument advanced by the learned counsel for the appellant is on the plea that the present suit is barred under Order II Rule 2 CPC. According to Sri.Dinesh Rao, the learned counsel appearing for the appellant, the claim made in this suit for recovery of possession was available to the plaintiff when he filed the earlier suit O.S.221/1998. Admittedly, the plaintiff did not seek leave of the court to confine his claim only for mandatory injunction leaving the claim for recovery of possession on a later date. Learned counsel has relied upon the Constitution Bench decision of the Supreme Court in ## R.S.A. No.233 of 2009 -: 10 :- ## **Gurbux Singh** v. **Bhooralal** [AIR 1964 SC 1810] where it was held : “In order that a plea of a bar under O. 2 R. 2(3), Civil Procedure Code 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 to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.” It was also held by the Supreme Court in the aforesaid decision that as the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It was further held that only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits, the bar under Order II Rule 2 of CPC would come into play. The decision of the Bombay High Court in **SNP Shipping Services Pvt. Ltd. and others** v. **World Tanker Carrier** ## R.S.A. No.233 of 2009 -: 11 :- ## **Corporation and another** [AIR 2000 Bombay 34] has also been relied upon by the learned counsel, where it was held : “A bare perusal of the aforesaid provisions make it clear that they are mandatory in nature. The term “shall” and not “may” occurs in all the rules. Thus under Order 2 Rule 1, the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of this claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. As noticed earlier the plaintiffs have claimed identical relief of declaration in Suit No. 58 of 1998.” The decision in **Kunjan Nair Sivaraman Nair** v. **Narayanan Nair** [2004 (1) KLT 1082 (SC)] has also been relied upon by the learned counsel for the appellant, where it was held : “A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must R.S.A. No.233 of 2009 ## -: 12 :- include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, the he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-r. (3) is concerned, before the second suit 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 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. It must, therefore, be shown by the defendants for supporting their plea of bar of O.11, R.2, sub-r.(3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit.” The learned counsel for the appellant would submit that the plaintiff could have made an application in the earlier suit seeking leave of the court to omit the relief of declaration of title and possession but that was not done. Since the R.S.A. No.233 of 2009 -: 13 :- requisite permission was not obtained by the plaintiff in the earlier suit, the present relief sought for recovery of possession is clearly barred under Order II Rule 2 CPC, the learned counsel submits. 13. Learned counsel for the respondents would submit that the earlier suit proceeded on the premise that the structures were put up by the defendant just prior to the suit or immediately after the filing of the suit and that was the consistent case through out. The evidence was also adduced in that line. As such, there was no necessity for the plaintiff to sue for recovery of possession on the strength of title in that suit. It is true that the cause of action cannot be split up to sue for one part in one suit and for the other part in another suit. In other words, where the same cause of action gives rise to several reliefs, such reliefs should be united in the same suit, or otherwise, the plaintiff should obtain leave of the court and reserve one or more reliefs for separate suit. R.S.A. No.233 of 2009 -: 14 :- 14. Learned counsel for the appellant would submit that the contention of the respondents that passing of Ext.A4 judgment in the earlier case gives rise to a new cause of action cannot be sustained. According to the respondents, the judgment in Ext.A4 suit has also been relied upon as the cause of action to file suit for recovery of possession in the particular factual back drop of the case. The plaintiff therein was confident of the fact that the relief of mandatory injunction would be granted by that court and because that court dismissed the prayer for mandatory injunction for the reasons already stated and since that court observed that the remedy if any available to the plaintiff is to sue for recovery of possession, the subsequent suit had to be filed seeking recovery of possession, the plaintiff contends. Therefore, though the judgment in Ext.A4 suit as such may not give rise to a cause of action, the 2[nd] suit had to be filed, since the court, in the earlier suit, declined the relief for mandatory injunction holding ## R.S.A. No.233 of 2009 -: 15 :- that the construction was put up in the disputed property prior to the institution of the suit. In the nature of the pleadings and the cause of action set up in Ext.A4 suit, it cannot be said that the claim for recovery of possession of plot B on the strength of title made in the present suit is barred under Order II Rule 2 of CPC. As such, I find that the argument vehemently advanced by the learned counsel for the appellant that the present suit is barred under Order II Rule 2 of CPC is unacceptable. No other point arises for consideration. In the result, this RSA is dismissed confirming the decree and judgment passed by the courts below. In the circumstances as stated earlier, the parties are directed to suffer their respective costs. **N.K.BALAKRISHNAN, JUDGE.** Jvt/JJJ