R.S.A. No.411 of 2003

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 5TH DAY OF SEPTEMBER 2012/14TH BHADRA 1934** ## **RSA.NO. 411 OF 2003 ( )** **--------------------------------------AS.134/1999 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR OS.82/1993 OF MUNSIFF'S COURT, PERUMBAVOOR** ## **APPELLANT/APPELLANT/PLAINTIFF:** **------------------------------------------------------** **JOSEPH, S/O.CHAKCO AGED, 60, MATTEKKATTIL HOUSE, PULLUVAZHY KARA, RAMAMANGALAM VILLAGE, PERUMBAVOOR, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.ALEXANDER JOSEPH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **-------------------------------------------------------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM KAKKANADU, P.O., ERNAKULAM.** **2. THE TAHSILDAR, KUNNATHUNADU TALUK, PERUMBAVOOR.** **3. THE DEPUTY TAHSILDAR, REVENUE RECOVERY SECTION, KUNNATHUNAD TALUK OFFICE, PERUMBAVOOR.** **4. THE VILLAGE OFFICER, RAYAMANGALAM VILLAGE, PULLUVAZHY, PERUMBAVOOR, ERNAKULAM DISTRICT.** **5. JACOB, S/O.JOSEPH, MANOHAR LODGE, MATTUNGAL NEAR BOMBAY GURUVAYOOR TEMPLE, BOMBAY (DELETED FROM THE PARTY ARRAY)** ## **R.S.A. No.411 of 2003** ## **6. THE DIVISIONAL FOREST OFFICER, CHALAKKUDY P.O.** **THE NAME OF THE 5[TH] RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 23.7.2010 IN I.A. NO.1784 OF 2010.** **BY GOVERNMENT PLEADER SHRI M.P.MADHAVANKUTTY.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 5.09.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No. 411 of 2003 ==================================== Dated this the 05[th] day of September, 2012** ## **J U D G M E N T** The plaintiff in O.S. No.82 of 1993 of the court of learned Munsiff, Perumbavoor is aggrieved by the dismissal of that suit as confirmed by the learned Additional District Judge, North Paravur in A.S. No.134 of 1999. 2. The appellant is the father of the 5[th] respondent. The 5[th] respondent owed certain amount to the Forest Department concerning which, respondents 1 to 4, on the request of the 6[th] respondent initiated revenue recovery proceedings. Respondents 1 to 4 intended to proceed against the house and property belonging to the appellant and the movables kept therein. The appellant filed O.S. No.111 of 1986 for a decree for prohibitory injunction against respondents 1 to 4 and 6 proceeding against the said properties. The immovable property and the house situated therein belonging to the appellant were described in the A schedule while the movables kept therein were described in the B schedule to the plaint in O.S. No.111 of 1986. The defendants in that suit contested the suit and the trial court granted a decree concerning the A schedule - immovable property and the house ## **R.S.A. No.411 of 2003** -: 2 :- situated therein. So far as the B schedule - movables are concerned, the trial court refused to grant relief for the reason that the prayer made in O.S. No.111 of 1986 was for a decree for prohibitory injunction against respondents 1 to 4 and 6 proceeding against the said movables but the evidence revealed that the said movables were already attached, taken possession and entrusted to the appellant on bond. That decision has become final. Thereafter appellant filed O.S. No.82 of 1993 for a declaration that he is the owner of the movables described in the plaint schedule (the B schedule movables in O.S. No.111 of 1986) and for a mandatory injunction directing respondents 1 to 4 to raise the attachment over the plaint schedule movables and deliver the same to the appellant. 3. Respondents 1 to 4 and 6 resisted the suit on various grounds. They claimed that the plaint schedule movables belonged to the 5[th] respondent (son of the appellant) who is also residing in the house belonging to the appellant. They further contended that the decision in O.S. No.111 of 1986 would operate as res judicata so far as reliefs concerning the plaint schedule movables. 4. The trial court held that there is no evidence to show **R.S.A. No.411 of 2003** ## -: 3 :- that the plaint schedule movables belonged to the appellant and consequently refused to grant relief to the appellant. 5. In appeal also learned District Judge also took the view that the finding in O.S. No.111 of 1986 as regards the plaint schedule movables would operate as res judicata. Dismissal of the suit was confirmed. Hence this Second Appeal. 6 The following substantial questions of law are framed for a decision: (i) Whether on the facts and circumstances of the case the lower appellate court was right in holding that the suit is barred by res judicata without persuing the judgment in O.S. No.111 of 1986? (ii) Whether the lower appellate court erred in not taking presumption that the owner of the house is the owner of the movables therein and the burden of proof to disprove it is on the person disputes it? 7. The learned counsel for the appellant contends that **R.S.A. No.411 of 2003** ## -: 4 :- the dismissal of O.S. No.111 of 1986 to the extent it concerned plaint schedule movables was only for the technical reason that the suit was for a decree for prohibitory injunction against respondents 1 to 4 and 6 proceeding against the said schedule movables but the evidence revealed that the movables were already placed under attachment and entrusted to the appellant on bond. Thus appellant had no possession of the movables at the time O.S. No.111 of 1986 instituted. Hence no relief was granted with respect to the plaint schedule movables in O.S. No.111 of 1986. It is argued that in the present suit the prayer is for declaration of the appellant's right over the plaint schedule movables and for a mandatory injunction to direct respondents 1 to 4 to raise the attachment and deliver the movables to the appellant. It is also argued that since admittedly the movables are kept in the house belonging to the appellant, that is a prima facie evidence of title of appellant over the said movables. The mere fact that the 5[th] respondent is also residing in the house belonging to the appellant would not mean that the movables belonged to the 5[th] respondent. 8. Learned Special Government Pleader appearing for the respondents 1 to 4 and 6 has contended that the decision in ## **R.S.A. No.411 of 2003** ## -: 5 :- O.S. No.111 of 1986 will operate as res judicata and that at any rate, no evidence is adduced by the appellant to show that the plaint schedule movables belonged to him. In that view of the matter no interference is required with the judgments of the courts below. 9. So far as the finding of the first appellate court regarding the application of Section 11 of the Code of Civil Procedure (for short, “the Code”) is concerned, the said court placed reliance on the decision in **Ayichutty v. State of Kerala** (2002[2] KLT 125). There, the circumstances where the principles of res judicata would be applied are referred. It is held that whatever not raised in a particular pleading for a relief shall always be taken as forgone and has been settled between the parties as if such grounds have been raised. That finding is based on Explanation (IV) to Sec.11 of the Code (the might and ought principle). 10. In this case it is not disputed that O.S. No.111 of 1986 was decreed with respect to the immovable property and the house situated therein belonging to the appellant but dismissed as regards the movables referred to in the plaint schedule (described as plaint B schedule in O.S. No.111 of 1986), not on the finding ## **R.S.A. No.411 of 2003** ## -: 6 :- that the said movables do not belong to the appellant but for the reason that the relief prayed for was decree for prohibitory injunction against respondents 1 to 4 and 6 proceeding against the said movables but by the time the suit was instituted, the movables had already been attached by respondents 1 to 4 and 6, taken possession and entrusted to the appellant on bond. Thus, at the time of institution of O.S. No.111 of 1986 the appellant had no possession of the plaint schedule movables. That decision, I am unable to think would operate as res judicata in the present suit since the prayer in the present suit is for declaration of title claimed by the appellant over the movables and for mandatory injunction to raise the attachment and return those movables to the appellant. The finding of the first appellate court that the suit is barred by the principle of constructive res judicata is not correct and has to be reversed. I do so. 11. Then the question is whether the plaint schedule movables belong to the appellant? It is admitted that appellant is not a defaulter to the 6[th] respondent. The liability is of the 5[th] respondent, the son of the appellant. If the movables do not belong to the 5[th] respondent, the question of respondents 1 to 4 and 6 proceeding against the movables does not arise. Therefore ## **R.S.A. No.411 of 2003** ## -: 7 :- the crucial question is whether the movables belonged to the appellant. 12. It is not disputed that the plaint schedule movables (described in the plaint schedule, item wise) were attached from the house belonging to the appellant. In other words the appellant was in possession of the said movables. So far as ownership of movables is concerned, possession is the prima facie evidence of ownership. Under Section 110 of the Evidence Act (for short, “the Act”), the burden was on respondents 1 to 4 and 6 to rebut that presumption. 13. Respondents 1 to 4 and 6 were not able to show, apart from the fact that the 5[th] respondent is residing in the house belonging to the appellant that the movables belonged to the 5[th] respondent. They could not rebut the presumption under Sec.110 of the Act. Therefore that presumption should stand and the movables should be found to be belonging to the appellant. 14. The 5[th] respondent is the defaulter. For realization of the amount said to be due from the 5[th] respondent, property of appellant cannot be proceeded against. It follows that respondents 1 to 4 and 6 could not have proceeded against the movables scheduled in the plaint. The attachment over the ## **R.S.A. No.411 of 2003** ## -: 8 :- movables is void. Therefore the appellant is entitled to the declaration and mandatory injunction prayed for. 15. The substantial questions of law framed are answered as above. The Second Appeal is allowed as under: (a) Judgment and decree of learned Additional District Judge, North Paravur in A.S. No.134 of 1999 and of learned Munsiff, Perumbavoor in O.S. No.82 of 1993 are set aside. (b) O.S. No.82 of 1993 is decreed as under: (i) It is declared that the appellant-plaintiff has right, title and interest over the movables described in the plaint schedule and that the attachment effected over the said movables is void and not binding on the appellant. (ii) Respondents 1 to 4 are directed, by a decree for mandatory ## **R.S.A. No.411 of 2003** -: 9 :- injunction to raise the attachment over the plaint schedule movables and effect symbolic delivery of the movables to the appellant cancelling the bond he has executed. (iii) Parties are directed to suffer their respective costs throughout. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv