## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
**THURSDAY, THE 30TH DAY OF JANUARY 2014/10TH MAGHA, 1935**
## **RSA.No. 688 of 2011 ( )**
**-----------------------AS.NO. 215/2009 OF SUB COURT, NEYYATTINKARA DATED 03-03-2011 OS.NO. 354/2008 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA DATED 20-08-2009**
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## **APPELLANT/APPELLANT/3RD DEFENDANT:**
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**SAROJAM, AGED 41 YEARS, KARAKKADU PUTHENVEEDU, PARASUVAKKAL DESOM, PARASUVAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.**
**BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN**
**SRI.GEORGE MATHEW SMT.K.V.RAMYA**
**SRI.DIPU JAMES**
## **RESPONDENT(S)/PLAINTIFF & DEFENDANTS 1 & 2:**
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**1. THAYAMMA, D/O.GNANAMMA, AGED 70 YEARS, GOKULAM, VADASSARYVILA, PARASSUVAKKAL DESOM, PARASUVAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 508.**
**2. SURESH, S/O. RAJAPPAN NADAR,AGED 42, KARAKKADU PUTHENVEEDU, PARASUVAKKAL DESOM, PARASUVAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 508.**
**3. JOHNSON, AGED 42 YEARS,**
- **S/O. RAJAPPAN NADAR, KARAKKADU PUTHENVEEDU, PARASUVAKKAL DESOM, PARASUVAKKAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT-695 508.**
**R1 BY ADV. SRI.C.P.PEETHAMBARAN**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**sts**
**P.BHAVADASAN, J. ----------------------------------------------Regular Second Appeal No.688 OF 2011 ----------------------------------------------Dated this the 30[th] day of January, 2014.**
## **J U D G M E N T**
The 3[rd] defendant who suffered a decree of declaration of tile and possession and mandatory injunction along with two other defendants who did not contest the suit is the appellant.
2. The plaintiff has obtained the plaint schedule property having an extent of 10 cents as per Ext.A1 deed dated 10.03.1997 executed by the 2[nd] defendant who is none other than the husband of the 3[rd] defendant. It is asserted in the plaint that ever since the execution of sale deed, she was in the absolute possession and enjoyment of the property. According to the plaintiff, the 3[rd] defendant trespassed into the plaint A schedule property and put up a shed known an B schedule property. She has no manner of right to do so. Hence suit was laid for necessary reliefs.
3. The 3[rd] defendant alone contested the case. She pointed
out that the 2[nd] defendant is not in India and he is not available
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to contest the suit. It is also pointed out that the suit is barred by res-judicata. There is no sale as such in favour of the plaintiff and that was only a document of security and the property is not intended to be assigned at all. That would be evident from the perusal of Ext.B1 document dated 11.03.1997 wherein receipt of Rs.40,000/- is acknowledged by the husband of the 3[rd] defendant for the purpose of sending his brother abroad. It is pointed out that the understanding was that when the money is repaid, the property would be reconveyed. On the basis of this contention, she prayed for dismissal of the suit.
4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 5 and the documents marked as Exts.A1 to A11. The contesting defendants had DWs 1 to 3 examined and Exts.B1 to B5 marked. Exts.C1 and C2 are commission reports and plans and Exts.X1 and X2 series are third party exhibits.
5. On appreciation of the materials, the trial court came to the conclusion that the 3[rd] defendant had no right over the property and that Ext.A1 is a pucca sale deed which has come
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into effect. Therefore, reliefs were granted as prayed for by the plaintiff.
6. In appeal, the appellate court, finding that no grounds are made out to interfere with the findings of the trial court, dismissed the appeal. Hence this R.S.A.
7. At the time of admission of the R.S.A, the following
questions of law were formulated:
“When O.S.228/2000 instituted by the first respondent/plaintiff seeking a decree for injunction was dismissed and A.S.130/2003 filed challenging the decree was also dismissed, and the plaint discloses that prior to the institution of the suit appellant constructed plaint B schedule shed and has been in possession of the same, whether courts below were justified in granting a decree without a prayer for recovery of possession and payment of court fee”.
8. It is an admitted fact that Ext.A1 document is a sale deed in respect of 10 cents of property executed by the 2[nd] defendant in the suit in favour of the plaintiff.
9. The contentions are two fold. The first is that the plaintiff in the plaint has admitted that the 3[rd] defendant had
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trespassed into the property in possession of the plaintiff and if that be so, unless there is a prayer for recovery of possession, the plaintiff could not succeed. The second contention is that Exts.A1 and B1 are simultaneous documents and they should be read together in which case it can be seen that Ext.A1 was executed on the understanding that on repayment of the money covered by Ext.B1, the property would be reconveyed.
10. Learned counsel appearing for the appellant contended that the above aspects have not been considered by the courts below in the proper perspective and that has resulted in a wrong decision being taken. If, as a matter of fact, Ext.A1 was intended to be a pucca sale deed, there was no necessity for executing Ext.B1 agreement and it does not stand to reason also because as per Ext.A1 sale consideration has been received. It is further pointed out that going by the plaint, the 3[rd] defendant is alleged to have trespassed into the property and put up a shed. It is an admission on the part of the plaintiff that the 3[rd] defendant is in possession of the property and there is no prayer for recovery of possession. It is also pointed out that there was an earlier suit
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filed by the plaintiff for injunction and that was dismissed and therefore the present suit is barred by res judicata.
11. Unfortunately, none of the grounds have merits. Ext.A1 document was admittedly executed by the 2[nd] defendant who is the husband of the 3[rd] defendant in favour of the plaintiff. Ext.B1 agreement is between the husband of plaintiff and the 2[nd] defendant. Admittedly, plaintiff is not a party to Ext.B1 agreement so that it could not be said that Exts.A1 and B1 are simultaneous documents executed by the same parties. So as to apply the principles laid down in _**Pailoth** vs._ _**Kunjuvareed**_ (1986 KLT 1390) and in _**Prabhakaran** vs._ _**Anthappan**_ (1986 KLT S.N.58 Case No.95), the parties to the document in question must be the same. In the said cases, documents were executed by the same parties and they came up for interpretation. In the case on hand, it is not disputed that the 3[rd] defendant has no manner of right over the property which is the subject matter of the suit.
12. The next contention regarding recovery of possession is also of no relevance because a reading of the plaint itself shows
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that what was alleged was that the 3[rd] defendant has trespassed into the property and put up a shed in violation of the rights of the plaintiff. There is no averment that the 3[rd] defendant is in actual possession of the plaint schedule property except for the allegation that she has put up a shed therein. There is an alternate prayer contained in the plaint that in case the court finds that she is in possession of the property, recovery may be given in respect of plaint B schedule property. The court below considered the question regarding possession and came to the conclusion that the plaintiff is in possession of the property and mere production of tax receipts cannot advance the case of the appellant.
13. However, as already noticed, going by Ext.A1, the plaintiff is in possession of the property. The courts below have accepted the case of the plaintiff that the shed was put up by the 3[rd] defendant. There is no finding much less evidence to the effect that the 3[rd] defendant was enjoying the property as a trespasser. There is no finding or evidence to the show that she was in actual physical possession of the property.
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14. Coming to the question regarding res judicata, it is trite that the dismissal of suit for injunction will not preclude the plaintiff in such cases to institute a suit on the basis of title unless in the injunction suit issue of title was gone into. In the case on hand, it is seen that injunction suit was dismissed on the ground that property had not been identified. There is no issue regarding title to the property in the suit. The trial court has relied on the decision of the Apex Court in coming to the conclusion that question of res judicata does not arise for consideration. The said finding seems to be just and proper. This Court finds no grounds to interfere with the judgments and decrees of the courts below.
In the result, the appeal is without merits and it is only to be dismissed. I do so. However, there will be no order as to cost.
Sd/-
## **P.BHAVADASAN JUDGE**
smp
// True Copy //
P.A. to Judge.
