Shibu v. Peethambaran, Karunakaran and Shaji

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021/14TH KARTHIKA, 1943** ## **RSA NO.1232 OF 2017** Against the judgment and decree dated 28.9.2017 in A.S.No.21/2013 on the file of the Sub Court, Kattappana arising from the judgment and decree dated 31.1.2013 in O.S.No.56/1996 on the file of the Munsiff's Court, Idukki ## **APPELLANT/3rd APPELLANT/3 rd DEFENDANT:** SHIBU, AGED 47 YEARS, S/O.KARUNAKARAN, RESIDING AT THUMARAKALAYIL HOUSE, MANGAPPARA KARA, KONNATHADY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI 685 563. BY ADVS. SRI.N.ASHOK KUMAR SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN ## **RESPONDENTS/RESPONDENT & APPELLANTS 1 AND 2/PLAINTIFF &** **DEFENDANTS 1 AND 2:** 1 PEETHAMBARAN, AGED 80 YEARS, FARMER, S/O. LATE SRI KANDARESIDING AT THUMARAKALAYIL HOUSE,MANGAPPARA KARA, KONNATHADY VILLAGE,UDUMBANCHOLA TALUK, IDUKKI 685 563 2 KARUNAKARAN, AGED 77 YEARS, S/O. LATE SRI. KANDAFARMER, RESIDING AT THUMARAKALAYIL HOUSE,MANGAPPARA KARA, KONNATHADY VILLAGE,UDUMBANCHOLA TALUK, IDUKKI 685 563 3 SHAJI, AGED 51 YEARS, S/O. KARUNAKARAN,THUMARAKALAYIL HOUSE,MANGAPPARA KARA, KONNATHADY VILLAGE,UDUMBANCHOLA TALUK, IDUKKI 685 563 BY ADVS. SRI.ALEXANDER JOSEPH SRI.M.V.SABU SRI.P.S.SIDHARTHAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING: R.S.A.No.1232 of 2017 ..2.. ## **JUDGMENT** This appeal is directed against the judgment and decree dated 28.9.2017 in A.S.No.21/2013 on the file of the Sub Court, Kattappana (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 31.1.2013 in O.S.No.56/1996 on the file of the Munsiff's Court, Idukki (hereinafter referred to as 'the trial court'). The appellant is the 3[rd] appellant in A.S.No.21/2013 on the file of the first appellate court and the 3[rd] defendant in O.S.No.56/1996 on the file of the trial court. The parties are hereinafter referred to as referred in the original suit unless otherwise stated. 2. According to the plaintiff, he has been in absolute possession and enjoyment of 1 acre and 60 cents of land with a residential building comprised in Sy.No.1/1/1007 of Konnathady Village as per sale deed No.1779/1986 of Sub Registrar's Office, Rajakumari. The R.S.A.No.1232 of 2017 ..3.. 1[st] defendant is in possession of the property immediately on the western side of the plaint schedule property. On 16.6.1996 at about 2 pm., the defendants made an attempt to trespass into the plaint schedule property. Hence, the plaintiff filed the suit for injunction simpliciter restraining the defendants from trespassing into the plaint schedule property. 3. In the written statement filed, the defendants contended that the plaint schedule property is not identifiable. It is also contended that the 3[rd] defendant has obtained property having an extent of 60 cents on the north-western side of the plaint schedule property. There are no survey stones demarcating the plaint schedule property and the property of the defendants. It is the specific case of the defendants that even if the plaintiff has any dispute regarding the boundaries, it can be resolved through proper survey and demarcation of R.S.A.No.1232 of 2017 **==> picture [22 x 8] intentionally omitted <==** boundaries of the properties owned by the plaintiff and the defendants. 4. After the institution of the suit (O.S.No.56/1996), the defendants filed O.S.No.69/1996 restraining the plaintiff from trespassing into the plaint schedule property allegedly owned and possessed by the defendants. 5. The trial court decreed O.S.No.56/1996 and dismissed O.S.No.69/1996. Thereafter, the appellant and respondent Nos.2 and 3 challenged the common judgment and decree by preferring A.S.No.63/2000 and A.S.No.65/2000 before the first appellate court. After having heard both sides, the first appellate court remanded the matter to the trial court for fresh consideration. The trial court after considering the matter afresh dismissed the suits as per common judgment and decree dated 20.1.2004. The 1[st] respondent (plaintiff in R.S.A.No.1232 of 2017 **==> picture [22 x 8] intentionally omitted <==** O.S.No.56/1996) preferred A.S.No.21/2004 challenging the dismissal of O.S.No.56/1996. During the pendency of the appeal (A.S.No.21/2004), the plaintiff filed I.A.No.1688/2006 on 4.12.2006 for amending the plaint by incorporating a relief for recovery of possession alleging that the defendants had trespassed into the plaint schedule property. The first appellate court allowed the application and remanded the case to the trial court for fresh disposal. The trial court was directed to permit the plaintiff to adduce evidence for the identification of the property and also for the alleged trespass made by the defendants on 18.8.2004. The first appellate court framed primarily two additional issues for trial. They were, (I) Whether there was any trespass on the part of the respondents on 18.8.2004? and (II) Whether the property can be identified as per the report and plan? The judgment and decree passed by the trial court was set R.S.A.No.1232 of 2017 **==> picture [22 x 8] intentionally omitted <==** aside for adjudication of the claim of the plaintiff afresh in the light of the points formulated as above. 6. Upon consideration of the above issues, the trial court by judgment dated 31.1.2013 granted recovery of possession of the plaint B schedule property to the plaintiff and also consequential injunction restraining the defendants from trespassing into the plaint A and B schedule properties. 7. The defendants preferred A.S.No.21/2013 before the first appellate court challenging the judgment and decree passed by the trial court. The first appellate court dismissed the appeal confirming the judgment and decree passed by the trial court. 8. This second appeal was admitted on 27.7.2018 on the following substantial question of law:- _“The second appeal is admitted on the following substantial question of law:_ _Are the Courts below justified in holding_ R.S.A.No.1232 of 2017 ..7.. _that the plaintiff is entitled to a decree for recovery of possession of the property over which he has no title merely on the strength of his possession in a regular suit?”_ 9. Heard the learned counsel for the appellant and the learned counsel for the respondents. 10. The learned counsel for the appellant contended that the trial court went wrong in considering other issues other than the issues framed by the first appellate court in A.S.No.21/2004 while remanding the matter for fresh consideration. According to the learned counsel for the appellant, the first appellate court mainly relied on Ext.C1 commission report and entered a finding that the plaintiff was in possession of the plaint B schedule property as on the date of suit despite the finding in A.S.No.21/2004 that the commission report is not sufficient to infer possession over the plaint B schedule property. It was argued that R.S.A.No.1232 of 2017 **==> picture [22 x 8] intentionally omitted <==** both the trial court and first appellate court granted recovery of possession and injunction in favour of plaintiff who is found to have no title to the property in a suit where there is no prayer for declaration of title. 11. Per contra, the learned counsel for the respondents contended that the plaint B schedule property in O.S.No.56/1996 and plaint B schedule property in O.S.No.69/1996 are the same property. According to the learned counsel for the respondents, both the suits were tried together and a common judgment and decree was passed. No appeal was filed from the judgment dismissing O.S.No.69/1996. Hence, according to the learned counsel for the respondents, the decree in O.S.No.69/1996 became final and the present appeal challenging the judgment and decree in O.S.No.56/1996 is hit by the principles of res judicata. R.S.A.No.1232 of 2017 **==> picture [22 x 8] intentionally omitted <==** 12. After having heard both sides, this Court framed an additional substantial question of law in this appeal on 2.11.2021 as to whether the present appeal is hit by the principles of res judicata as the judgment and decree in O.S.No.69/1996 between the parties has become final. The learned counsel for the appellant and the learned counsel for the respondents filed written submissions before this Court touching the above question of law. 13. O.S.No.69/1996 is a suit for injunction simpliciter filed by the 1[st] and 3[rd] defendants for permanent prohibitory injunction restraining the plaintiff from encroaching upon the land actually possessed by the defendants. Both the cases were tried together by the trial court on the application of the defendants 1 and 3 in O.S.No.69/1996. The parties were allowed to lead evidence in O.S.No.56/1996. R.S.A.No.1232 of 2017 ..10.. 14. Both the cases were jointly tried. O.S.No.56/1996 was decreed and O.S.No.69/1996 was dismissed by the trial court on 24.8.1998. The decree from O.S.No.69/1996 was challenged in A.S.No.63/2000 and the decree from O.S.No.56/1996 was challenged in A.S.No.65/2000. By the judgment and decree dated 25.7.2002 both the appeals were allowed and the cases were remanded. After remand, by the judgment dated 20.1.2004 the trial court entered the following finding in paragraph 16 of the judgment:- _“16. Issue No.2: The case of the plaintiff in O.S.69/96 is that the defendant herein has threatened that he would trespass upon the plaint schedule property and would construct a fencing on the property belonging to the plaintiff. According to the plaintiffs' averment in the written statement in O.S.56/96 there is no boundary marks on the boundary between the plaint schedule property herein and the property of the defendant. The commissioner who had measured out the property has also observed in his report_ R.S.A.No.1232 of 2017 ..11.. _ie., Ext.C2, that there is no boundary marks on the western and southern boundaries of the B schedule properties. The evidence of DW2 ie., his assertions in the proof affidavit, indicates that there are survey stones on the boundary between the property of the defendant and the B scheduled property is demarcated by survey stones. According to him it can be identified on the basis of the cultivation effected in the properties. But their contentions in the written statement in O.S.69/96 are that there is no boundary stone and soil ridge on the boundary between the properties scheduled in O.S.56/96 and O.S.69/96. Hence the evidence let in by DW2 appears to be inconsistent with his averments in the written statement in O.S.56/96 and therefore, it cannot be relied on to prove their case. In the above circumstances, I am of the view that the plaintiff herein cannot be granted a decree as prayed for by them. Admittedly, there is no prayer for fixation of boundary between the property of the plaintiffs and the defendant. Without demarcating the boundary between the properties, the court cannot give a decree of permanent prohibitory injunction. Besides, in my finding under issue No.1 I have found that the_ R.S.A.No.1232 of 2017 ..12.. _plaintiffs have failed to prove the attempt and threat allegedly made by the defendant. Hence, I am of the view that the plaintiffs are not entitled to get a decree as prayed for by them. Issue No.2 is found against the plaintiff.”_ 15. Accordingly, both the suits were dismissed. The decree in O.S.No.69/1996 was not challenged in appeal and became final. The plaintiff challenged the decree in O.S.No.56/1996 in A.S.No.21/2004 before the first appellate court. Alleging that during the pendency of the appeal the defendants trespassed into the plaint schedule property the plaintiff amended the suit incorporating the area trespassed upon having an extent 30.5 cents of property as plaint B schedule property and seeking recovery of possession of the property. The first appellate court remanded the case for trial after framing issues as stated hereinabove. Ultimately, O.S.No.56/1996 was decreed by the judgment and decree dated 31.1.2013 of the trial court. Recovery of possession of plaint B schedule R.S.A.No.1232 of 2017 **==> picture [28 x 8] intentionally omitted <==** property was granted. Challenging the judgment and decree, A.S.No.21/2013 was filed before the first appellate court. By the judgment and decree dated 28.9.2017, the first appellate court dismissed the appeal. 16. It is clear from the judgment and decree of the trial court dated 20.1.2004 that both suits were dismissed. It is clear from the judgment dated 20.1.2004 that facts are common in the above cases. In other words, common questions of law and facts arise for consideration. The identity of the property is directly under challenge. When the identity of the property is directly under challenge non-filing of appeal in O.S.No.69/1996 is certainly a bar against the appellant herein to prosecute the appeal. The mere contention that the properties are different is not sufficient to escape from the plea of res judicata. The principle of res judicata is as such applicable. Both the suits were tried together and a R.S.A.No.1232 of 2017 ..14.. common judgment and decree was passed. In the judgment and decree, it is specifically stated that the property of the plaintiff and the defendants are not identifiable. Hence, even if the decree passed by the trial court in O.S.No.69/1996 is unsustainable in law, the defendant cannot challenge the judgment and decree in O.S.No.56/1996 alone without challenging the judgment and decree in O.S.No.69/1996. The legal bar is clearly applicable to the defendant/appellant. 17. The plaint A schedule property in O.S.No.69/1996 is an area of 2 acres of land comprised in Sy.No.1/1/1066-2 of Konnathady Village; whereas plaint B schedule property is an area of 60 cents of land within the above boundaries and all the improvements therein. The plaint schedule property in O.S.No.56/1996 is an area of 1.60 acres of land comprised in Sy.No.1/1/1007 of Konnathady Village. R.S.A.No.1232 of 2017 ..15.. 18. The total extent of property obtained by late Kanda, father of the plaintiff and the 1[st] defendant, as per land assignment No.2/94 is 4.79 acres comprised in Sy.No.1/1/1007. As per Ext.A1, the plaintiff obtained property on the south-western portion of Sy.No.1/1/1007 and the 3[rd] defendant who is the appellant obtained property having an extent of 60 cents as per Ext.B2 on the north-western portion of Sy.No.1/1/1007. In Exts.A1 and B2, it is stated that possession of respective portion was given to the parties. According to the learned counsel for the appellant, as per Ext.A1, the plaintiff obtained possession of property on the south-western portion and the 3[rd] defendant obtained possession of property on the north-western portion as per Ext.B2. The logic behind the contention is that the 3[rd] defendant claimed title and possession over a property other than the property obtained as per Ext.B2. Thus, it is argued that the R.S.A.No.1232 of 2017 ..16.. properties covered as per Exts.A1 and B2 are different. This contention is _prima facie_ unsustainable for the reason that there is a clear finding that the plaint schedule properties are not identifiable. 19. In **Premier Tyres Ltd. v. KSRTC** [1993 KHC 296], the Supreme Court considered the effect of nonfiling of appeal in the connected suit tried with common issues. The Apex Court held that the finality of the finding recorded in the connected suit, due to non-filing of appeal, precluded the court from proceeding with the appeal in the other suit. Effect of non-filing of appeal against a judgment and decree is that it becomes final. This finality can be taken away only in accordance with law. The same consequence follows when the judgment and decree of the connected suit in O.S.No.69/1996 is not appealed from. It is not possible to distinguish in this appeal as contended by the learned counsel for the appellant that the properties are different. R.S.A.No.1232 of 2017 **==> picture [28 x 8] intentionally omitted <==** In the result, this appeal fails and is dismissed. There will be no order as to costs. Pending applications, if any, stand closed. Sd/- **N.ANIL KUMAR, JUDGE** skj