S. Vinod Kumar @ Vinod G.S. & L.S. Veena v Mani S/O Narayana Pillai & L. Lakshmykumari

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934 SA.No. 860 of 2000 (B) ---------------------- AS.123/1989 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.101/1987 of PRL.MUNSIFF COURT, TRIVANDRUM APPELLANTS/RESPONDENTS 1 & 2/PLAINTIFFS 1 & 2: ----------------------------------------------------------- 1. S.VINOD KUMAR @ VINOD G.S., AGED 32, RESIDING AT T.C.13/542, KUNNUKUZHI, TRIVANDRUM. 2. L.S.VEENA, D/O.LAKSHMIKUMARI, AGED 30 YEARS, RESIDING AT T.C.13/542, KUNNUKUZHI, TRIVANDRUM. BY ADV. SRI.R.S.KALKURA RESPONDENTS/APPELLANT, RESPONDENTS 3 & 4/1ST DEFENDANT, 3RD PLAINTIFF AND 2ND DEFENDANT: ------------------------------------------------------------------------- 1. MANI, S/O.NARAYANA PILLAI, AGED 46, RESIDING AT T.C.28/1072, PRESENT T.C.30/1236, MADHUMUK LANE, PALKULANGARA VILLAGE, TRIVANDRUM. - *2. SIVADASAN NAIR, RESIDING AT T.C.13/542, **(DELETED)** KUNNUKUZHI, TRIVANDRUM. 3. L.LAKSHMYKUMARI, RESIDING AT T.C.30/1233, “VEENA”, PALKULANGARA, TRIVANDRUM. *R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 21.1.2011 IN I.A.NO.156/2011. BY ADV. SRI.BIJU BALAKRISHNAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.4.2012, THE COURT ON 8.6.2012 DELIVERED THE FOLLOWING: SA.No. 860 of 2000 (B) ## ORDER ON C.M.P.NO.2269/2000 DISMISSED. 8.6.2012 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. ## **HARUN-UL-RASHID, J. -----------------------S.A.No.860 Of 2000** **---------------------Dated this the 8[th] day of June, 2012.** ## **J U D G M E N T** The substantial questions of law formulated in the appeal are as follows: _i) Is not the court below wrong in holding that the decree in O.S.No.1587/1979 is binding on the plaintiffs/appellants when they were not parties to the suit?_ _ii) Were the plaintiffs 1 & 2 represented by their parents in O.S.No.1587/1979 is one co-owner entitled to represent another co-owner in a suit without the other co-owner being made a party. Will it be sufficient to implead any one co-owner to bind all other co-owner who are not parties to the proceedings._ _iii) Whether a judgment and decree in a suit for injunction would bar the plaintiffs from instituting a fresh suit by principles of constructive res judicata as contained in Section 11 explanation 4 when they were not parties to the earlier suit and when they were not even represented either by the court guardian or by their parents themselves?_ _iv) Can a suit wherein minors rights are involved and where the plaintiffs in such a suit do not implead the minor or comply with the requirements of Order XXXI of the Code of Civil Procedure entitled to claim that a decree in such a suit is binding on the minor plaintiffs who were not parties?_ **::2::** ## **S.A.No.860 Of 2000** _v) Is the observation of the courts below that the 3[rd] plaintiff who represents the 2[nd] plaintiff as the next friend was not entitled to represent the plaintiffs correct especially when Order XXXII prescribed in the mode and manner in which a next friend of the minor can institute a suit without the conjunction of their parents or relatives?_ _vi) Has not the court below wrongly applied the ruling reported in 1988 (2) KLT 472 to the facts of the case as the said ruling related to a case where a mortgage was involved and one of the co-mortgagor was contesting the case and the integrity of mortgage was involved. In a case where neither the plaintiff had an intention to bind the judgment and decree against the minors when the minors were neither impleaded nor the parents represented the estate of the minors can it be said that the judgment in O.S.No.1587/1979 constitute an estoppel as against the minors who are not parties to that proceedings._ 2. Plaintiffs 1 & 2 in O.S.No.101/1987 are the appellants. The appeal is directed against the judgment and decree in A.S.No.123/1989 on the file of the III Additional District Court, Thiruvananthapuram, which arises from the decree and judgment in O.S.No.101/1987 on the file of the Munsiff Court, Thiruvananthapuram. Suit was filed for a declaration that the decree in O.S.No.1587/1979 on the file of the II Additional **::3::** ## **S.A.No.860 Of 2000** Munsiff Court, Thiruvananthapuram is not binding on the plaintiffs or plaint 'A' schedule property and for a permanent prohibitory injunction restraining the defendants from demolishing any portion of the compound wall, latrine or any other structure in plaint 'A' schedule property in execution of the decree in O.S.No.1587/1979 or in any way obstructing the peaceful possession and enjoyment of the plaintiffs over the plaint schedule property. The trial court granted the declaration and issued injunction. The lower appellate court reversed the findings of the learned Munsiff and held that the decree in O.S.No.1587/1979 is valid and binding on the plaintiffs 1 & 2 even though they were not made co-nominee parties in the said suit. The lower appellate court dismissed the suit. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. Plaintiffs 1 & 2 are brother and sister respectively and are the children of 2[nd] defendant. At the time of filing the suit, the 2[nd] plaintiff was a minor aged 16, represented by next friend and natural uncle, 3[rd] plaintiff. Plaint 'A' schedule property is 10.625 cents of land together with a building and other appurtenants thereto comprised in survey No.988/4 of **::4::** ## **S.A.No.860 Of 2000** Palkulangara Village. The said property stands jointly in the names of the plaintiffs 1 & 2 and the 2[nd] defendant as per sale deed dated 25.5.1978. Plaintiffs 1 & 2 and their mother, who is the 2[nd] defendant, are the co-owners of the plaint schedule property, each entitled to 1/3[rd] share over the same. There is a pathway that lies to the west and north of plaint 'A' schedule property having a width of 5 links. The pathway is scheduled in the plaint as 'B' schedule. It is pleaded that no portion of the compound wall or latrine constructed within plaint 'A' schedule property projects into, abuts or protrudes or takes in any portion of plaint 'B schedule pathway. The 1[st] defendant is the owner of the property lying south of plaint 'B' schedule pathway. It is alleged in the plaint that the 1[st] defendant has only right of passage over the plaint 'B' schedule pathway. It is stated in the plaint that the 1[st] defendant as plaintiff had filed a false and frivolous suit as O.S.No.1587/1979 alleging that the latrine and the bathroom were constructed in such a way that portion of the same were projecting and standing in plaint 'B schedule pathway. Suit was filed against the 2[nd] defendant and others. The father of plaintiffs 1 & 2 and 2[nd] defendant mother are defendants 3 & 4 in O.S.No.1587/1979. The 1[st] defendant obtained a decree in the **::5::** ## **S.A.No.860 Of 2000** suit to demolish the portion of the latrine and compound wall on the western boundary alleging encroachment upon the plaint 'B' schedule pathway as shown in sketch No.3 appended to the said decree. According to plaintiffs 1 & 2 the 1[st] defendant suppressed the fact that plaint 'A' schedule property belongs to plaintiffs 1 & 2 and obtained a decree behind the back of plaintiffs 1 & 2 without impleading them in the party array. Though the parents of plaintiffs are parties it is alleged that they did not represent the plaintiffs. On the aforesaid facts and circumstances the present suit was filed for a declaration that the decree obtained by the 1[st] defendant in O.S.No.1587/1979 is not binding on plaintiffs 1 & 2 or plaint 'A' schedule property and that the 1[st] defendant is not entitled to have the said decree executed or in pursuance of the aforesaid decree demolish any portion of the structure standing in the plaint schedule property or demolish the latrine or any other structure constructed therein. Suit was filed alleging that the 1[st] defendant is attempting to take hasty steps to execute the decree in O.S.No.1587/1979. 4. In the written statement filed by the 1[st] defendant it is inter alia contended that practically the suit was filed to prevent the court from executing the decree in O.S.No.1587/1979, that **::6::** ## **S.A.No.860 Of 2000** the suit was brought up at the instance and force of the 2[nd] defendant and her husband, who are the parents of plaintiffs 1 & 2, that the 3[rd] plaintiff has no right or locus standi to represent the 2[nd] plaintiff so long as her parents who are the natural guardian are alive, that the suit is ill-motivated and it is calculated to defeat the decree validly obtained and is an abuse of the process of the court. It is also contended that the suit is barred by general principles of res judicata and also by Section 11 Code of Civil Procedure and that the issues framed in the present suit and the issues decided in O.S.No.1587/1979 are one and the same. The pathway described as plaint 'B' schedule is the pathway leading to the property of the 1[st] defendant which was provided under the settlement deed and passes along the western and northern side of plaint 'A' schedule property. O.S.No.1587/1979 was filed by the 1[st] defendant herein against the Corporation of Thiruvananthapuram, State, the 2[nd] defendant herein and her husband, who is the father of plaintiffs 1 & 2, for a prohibitory injunction. During the pendency of the said suit, the parents of the plaintiffs 1& 2 herein had put up a bathroom and latrine encroaching into plaint 'B' schedule pathway. Since the order of injunction was violated by them, the plaintiff amended **::7::** ## **S.A.No.860 Of 2000** the suit and sought the relief of mandatory injunction and recovery of possession. The trial court decreed the suit. The decree was confirmed in appeal and second appeal. Thereafter the 1[st] defendant herein initiated execution of the decree in O.S.No.1587/1979 and it is at that juncture, the present suit was filed by plaintiffs on 15.1.1987 challenging the decree and judgment and sought for a declaration that the same is not binding on them since they were not parties to the earlier suit. It is contended that it was the parents of plaintiffs 1 & 2 who effected unauthorised construction which is sought to be removed by executing the decree in O.S.No.1587/1979. It is also pleaded that what is sought to be removed in pursuance of the decree in O.S.No.1587/1979 is the unauthorised construction protruding into plaint 'B' schedule pathway and no relief is sought for in respect of plaint 'A' schedule property in this case. 5. The 2[nd] defendant filed a written statement supporting the plaint averments. 6. Plaintiffs 1 & 2 are the co-owners of plaint 'A' schedule property. The other co-owner is their mother, who is the 2[nd] defendant in the suit. The 2[nd] plaintiff was a minor at the time of filing the present suit. She was represented by her uncle who is **::8::** ## **S.A.No.860 Of 2000** the 3[rd] plaintiff in the suit. Plaint 'A' schedule property is having an extent of 10.625 cents of land with a building therein which belong to plaintiffs 1 & 2 and their mother 2[nd] defendant. Plaint 'B' schedule property is the pathway having a width of 5 links leading to the property of the 1[st] defendant. The sale deed in favour of the plaintiffs 1 & 2 is marked as Ext.A2. Plaint 'B' schedule pathway stretches over the entire western boundary of plaint 'A' schedule property, then leads to the northern side and reaches the 1[st] defendant's property. It is an admitted case of the parties that the 1[st] defendant herein as plaintiff filed O.S.No.1587/1979 against the 2[nd] defendant and her husband, who are the parents of plaintiffs 1 & 2. The Corporation of Thiruvananthapuram and State were the defendants 1 & 2 in the said suit. O.S.No.1587/1979 was filed apprehending trespass over plaint 'B' schedule pathway. In O.S.No.1587/1979, the plaintiff alleged that defendants 3 & 4 (parents of plaintiffs 1 & 2 herein) are attempting to trespass into a portion of the pathway and are trying to put up structures encroaching into the pathway. The said suit was filed for an injunction restraining the defendants from making any illegal construction encroaching into the pathway. Subsequently, the plaint was amended seeking to **::9::** ## **S.A.No.860 Of 2000** remove the construction made on plaint 'B' schedule pathway and recovery of encroached portion. The plaint was amended in that suit alleging that the defendants 3 & 4 in that suit encroached portions of the pathway and put up compound wall and latrine trespassing into the pathway. 7. Ext.B13 is the copy of the judgment in O.S.No.1587/1979. The pathway aforesaid is described as plaint 'B' schedule. It is the very same pathway that leads to the property of the 1[st] defendant herein, who is the plaintiff in that suit. In O.S.No.1587/1979, the defendants 3 & 4 admitted the existence of the pathway. They also admitted the width of the pathway as 5 links. Defendants 3 & 4 in the said suit contended that they have constructed the bathroom and latrine in their property, that they have only renovated the old bathroom and that they have not trespassed into any portion of the pathway. In the said suit a commissioner was deputed to ascertain whether there is any encroachment upon plaint 'B' schedule pathway. In the plan produced along with the report, the commissioner located the portion of the latrine and bathroom constructed encroaching upon plaint 'B' schedule pathway. The case was very seriously contested by both sides. In Ext.B13 judgment, the **::10::** ## **S.A.No.860 Of 2000** court held that it has come out in evidence that the plaintiff has the right of way which was leading to his house and that the defendants have no right to construct any structures encroaching upon plaint 'B' schedule pathway obstructing the right of way of the plaintiff in that suit. The court held that the plaintiff is entitled to remove the construction encroaching upon plaint 'B' schedule pathway and to get an injunction restraining the defendants from constructing any further structure encroaching upon plaint 'B' schedule property as shown in Ext.C2 plan. The court also held that the plaintiff is entitled to remove the portion of the compound wall and bathroom which was constructed trespassing into the pathway shown in Ext.C2 plan and is allowed to recover the same from defendants 3 & 4 for adding to the pathway. Defendants 3 & 4 in O.S.No.1587/1979 filed A.S.No.369/1982 before the District Court. The District Court, Thiruvananthapuram, by judgment dated 10.10.1984, confirmed the decree and judgment and dismissed the appeal. Defendants 3 & 4 preferred second appeal before this Court as S.A.No.434/1985. This Court, after considering the matter on merits, by judgment dated 26.11.1985, dismissed the second appeal finding that the same is devoid of any merit. The plaintiff **::11::** ## **S.A.No.860 Of 2000** in O.S.No.1587/1979 filed execution petition seeking to execute the decree. While the execution proceedings are pending the present suit was filed in 1987 by the two children of the judgment debtors in the earlier suit. At the time of filing the present suit, the 2[nd] plaintiff was still a minor. The father is the natural guardian of the minor children and next to him is the mother. In the present suit, the 2[nd] plaintiff minor was represented by her uncle. In the present case, there is no explanation as to why the minor was not represented by the father or mother. The lower appellate court held that the 3[rd] plaintiff was incompetent to represent the 2[nd] plaintiff and nothing was indicated as to why the 3[rd] plaintiff was chosen to represent the minor 2[nd] plaintiff which raises a suspicion regarding the conduct of the plaintiffs. 8. The decree passed in the earlier suit is very material in deciding the fate of the present suit. The earlier suit was filed by the 1[st] defendant as plaintiff alleging that the parents of the present plaintiffs 1 & 2 put up bathroom and latrine encroaching a portion of the pathway that leads to his house. In the suit, after a full fledged trial, the civil court found that parents of plaintiffs 1 & 2 have committed trespass and reduced portions of **::12::** ## **S.A.No.860 Of 2000** the pathway by making construction encroaching upon it. The parents of the plaintiffs 1 & 2 suffered the decree. Suit was of the year 1979. They preferred appeal. The appeal was also contested on merits and the same was dismissed. Finally, the second appeal was also contested on merits and was dismissed by judgment dated 26.11.1985. The present suit was filed when the decree holder, who is the 1[st] defendant herein, moved the execution court for executing the decree i.e., for removal of encroached portions of the bathroom and latrine. The crux of the contentions raised by the plaintiffs is that they were not parties to O.S.No.1587/1979 and therefore, the decree is not binding on them. They sought injunction restraining the 1[st] defendant decree holder from executing the decree in O.S.No.1587/1979. The stand taken by the plaintiffs 1 & 2 is that both of them are co-owners along with their mother, 2[nd] defendant, that since they were not made parties to O.S.No.1587/1979, the decree is not binding on them and that they are entitled to injunction restraining the 1[st] defendant from executing the decree. 9. Plaintiffs 1 & 2 were minors during the pendency of O.S.No.1587/1979. The said suit was filed at a time when the parents of plaintiffs 1 & 2 attempted to put up compound wall, **::13::** ## **S.A.No.860 Of 2000** latrine, bathroom etc. trespassing upon plaint 'B' schedule pathway. A decree for recovery of possession was also passed in that suit finding that the parents of plaintiffs 1 & 2 have encroached into portions of the pathway. It is for executing Ext.B13 decree that the 1[st] defendant as decree holder preferred execution petition. The fact that plaintiffs 1 & 2 are also coowners along with their mother 2[nd] defendant will not in any way dis-entitle the 1[st] defendant herein from executing the decree in O.S.No.1587/1979 against the parents of the plaintiffs 1 & 2 who are the judgment debtors. Since plaintiffs 1 & 2 have not encroached into any portion of plaint 'B' schedule pathway the 1[st] defendant as plaintiff had no occasion to implead the present plaintiffs 1 & 2 in the earlier suit. In the earlier suit the allegation was that defendants 3 & 4 therein (who are the parents of plaintiffs 1 & 2) had trespassed into portions of plaint 'B' schedule pathway and effected construction encroaching into the pathway. The civil court, in the earlier suit, examined the contentions of the parties and held that the parents of plaintiffs 1 & 2 were encroachers. Plaintiffs 1 & 2 in the present suit have not encroached into any portions of plaint 'B' schedule pathway and put up bathroom, latrine, compound wall etc. The person **::14::** ## **S.A.No.860 Of 2000** who encroached into plaint 'B' schedule pathway is their mother, who is the 2[nd] defendant herein and their father, who were defendants 3 & 4 in the earlier suit. Admittedly, the mother is a co-owner in respect of plaint 'A' schedule property along with plaintiffs 1 & 2. In fact in a suit of like nature, the intruders alone need be made parties. There is no allegation that minor plaintiffs 1 & 2 have encroached into any portion of plaint 'B' schedule property. The persons who have encroached into portions of the pathway are made parties and a decree was passed against them. The decree holder in O.S.No.1587/1979 is entitled to execute the decree against the parents of the plaintiffs 1 & 2, who are the defendants/judgment debtors in the earlier suit. The appellate court elaborately dealt with the said contentions and held that the 1[st] defendant/decree holder has every right to execute the decree in O.S.No.1587/1979 as against the parents of the plaintiffs 1 & 2, who are the defendants/judgment debtors in the earlier suit. The court below also relied on the decision reported in _**Velayudhan Pillai v. Krishnan Asan**_ (1988 (2) KLT 472). The 1[st] defendant/decree holder proceeded to recover portions of the encroached portion only against defendants/judgment debtors in that suit and hence **::15::** ## **S.A.No.860 Of 2000** the plaintiffs in the present suit are not entitled to restrain the 1[st] defendant/decree holder from executing the decree as against them. Plaintiffs 1 & 2 are co-owners along with the 2[nd] defendant. The 2[nd] defendant is the judgment debtor in O.S.No.1587/1979. The 1[st] defendant who obtained a decree against the 2[nd] defendant and others is entitled to execute the decree as against them. Plaintiffs have no right to sue for an injunction restraining the 1[st] defendant/decree holder from executing the decree in O.S.No.1587/1979. 10. Plaintiffs 1 & 2 have raised questions as to whether one co-owner is entitled to represent the other co-owners when a co-owner being made a party. The present suit was proceeded as if the decree was passed not only against the 2[nd] defendant, who is the mother, but also as against plaintiffs 1 & 2. In fact, plaintiffs 1 & 2 who were not encroachers have nothing to do with the decree passed in O.S.No.1587/1979. In the said suit no relief was sought for in respect of the present plaint 'A' schedule property and the decree was passed directing recovery of portions of pathway encroached by the defendants 3 & 4. The plaintiff in that suit sought decree against the persons who encroached into portions of plaint 'B' schedule pathway. They are **::16::** ## **S.A.No.860 Of 2000** the parents of the present plaintiffs 1 & 2. Out of them one is a co-owner. Since the other co-owners (plaintiffs 1 & 2) did not encroach into any portion of pathway the plaintiff in that suit had no occasion to implead them as party. Since the suit was instituted against the encroachers alone, there was no necessity to implead plaintiffs 1 & 2 though they were also co-owners. The law does not prohibit the decree holder in such a situation to execute the decree against the encroacher who is one of the coowners. The other co-owners are not entitled to a decree for injunction restraining the decree holder in the earlier suit to execute the decree passed in that case. The trial court went wrong in decreeing the suit. In the aforesaid facts, the real question that arises for consideration is whether the 1[st] defendant, who is the decree holder in O.S.No.1587/1979, is entitled to execute the decree. The said question was answered by the lower appellate court and this Court held that the decree holder is entitled to execute the decree even though plaintiffs 1 & 2 were not parties in the said suit. Therefore, the question as to whether the decree in O.S.No.1587/1979 is binding on the plaintiffs or not is not really arises for consideration and the question that arises for consideration is the issue as stated supra. **::17::** ## **S.A.No.860 Of 2000** I find that no question of law muchless any substantial question of law arises for consideration in the second appeal. The second appeal is devoid of any merit and accordingly dismissed with cost throughout. **HARUN-UL-RASHID, Judge.** bkn/-