Simson Babu and Kunjumma Achamma v. Appavu Nadar Krishnan Kutty and Mary Appu Nadar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018/28TH AGRAHAYANA, 1940** **RSA.No.1303 of 2005 E** **AGAINST THE JUDGMENT AND DECREE DATED 19.3.2005 IN AS NO.137/1999 OF THE SUB COURT, NEYYATTINKARA.** **AGAINST THE JUDGMENT AND DECREE DATED 17.3.1999 IN OS NO.747/1995 OF THE II ADDL.MUNSIFF'S COURT, NEYYATTINKARA** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** - **1 SIMSON BABU RESIDING AT VALIYAVILA PUTHAN VEEDU, KOTTUKAL DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT.** - **2 KUNJUMMA ACHAMMA, W/O.SIMSON BABU RESIDING AT DO.DO.** **BY ADVS. SMT.ANJALI B CHANDRAN SMT.P.ANJANA SMT.R.BINDU SRI.HARISH GOPINATH SRI.M.S.KALESH SRI.R.S.KALKURA** ## **RESPONDENTS/RESPONDENTS 2 & 3/DEFENDANTS 2 AND 3:** - **1 APPAVU NADAR KRISHNAN KUTTY RESIDING AT IRAYANVILA VALIYAVILA VEEDU, THIRUPURATHOOR DESOM, THIRUPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT.** - **2 MARY APPU NADAR RESIDING AT JYOTHIVILASOM, VITTIVILA VEEDU, CHAVADI NADA, MANGALATHUKONAM, VENGANOOR DESOM, KOTTUKAL VILLAGE, THIRUVNANTHAPURAM DISTRICT.** **R1 BY ADV. SRI.G.S.REGHUNATH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.1303 of 2005 E :: 2 :: ## **JUDGMENT** A suit for redemption in O.S.No.747 of 1995 was ended in dismissal both in the trial court (II Additional Munsiff's Court, Neyyattinkara) and in the first appellate court (Sub Court, Neyyattinkara)in A.S.No.137 of 1999. Aggrieved by the said decree and judgment, the plaintiffs came up with this second appeal. 2. The subject matter of the suit comes to 15 cents of landed property scheduled in the plaint as B schedule being part of large extent of 36 cents originally obtained by one Eswaripillai to her sub tarwad along with her minor children under a family partition of 1104 M.E. She had given the property on lease to one Thopilas Nadar in the year 1115 M.E. Subsequently, she along with her children had given the property on mortgage under Ext.A2 in the year 1118 M.E. to one Ponnamma Pillai with a direction and authority to release the existing lease over the property stands in R.S.A.No.1303 of 2005 E :: 3 :: favour of Thopilas Nadar under the lease of the year 1115 M.E. Subsequently she had released the lease. While so, she executed a mortgage deed dated 18.5.1122 M.E. in respect of the entire A schedule property to one Krishna Pillai. Krishna Pilla, in turn, assigned the mortgage on 28.5.1966 in favour of Ayyappan Pillai. In the year 1977, Ayyappan Pillai assigned the mortgage right in favour of the first defendant and first defendant, in turn, assigned the right in favour of second defendant in the year 1992 under Ext.B1 document. The details of the earlier mortgage deeds were not mentioned in Ext.B1 document. 3. While so, Vijayamma Pillai, daughter of Easwari Pillai, the mortgagor who obtained the property by virtue of the document of the year 1104 M.E., by way of partition to their sub tarwad claiming under Easwari Pillai and other owners filed a suit for redemption against the first defendant in O.S.No.176 of 1987 before the Munsiff’s Court, Neyyattinkara for redeeming a mortgage stands in favour of first defendant R.S.A.No.1303 of 2005 E :: 4 :: claiming that he is holding the mortgage right obtained under the mortgage deed of the year 1961. The suit was hotly contested stating that there is no such subsisting mortgage of the year 1961. Inter alia, it was also contended that the first defendant is in possession of the property under a mortgage of the year 1118 (Ext.A2) in continuation of mortgagees, the predecessor-ininterest. Subsequently, the present plaintiffs got impleaded in the suit as additional plaintiffs 3 and 4. Though an application for amendment was filed for incorporating a prayer for redemption of mortgage of the year 1118 M.E. under Ext.A2, it was not entertained as it was filed at a belated stage of the suit. The suit was ultimately dismissed by virtue of Ext.B5 judgment and Ext.B6 decree. It is thereafter the plaintiffs came up with the present suit for redemption of mortgage of the year 1118 M.E, under Ext.A2 on the strength of Ext.A3 sale deed of the jenm right. 4. The trial court and the first appellate court dismissed the suit on the ground that the R.S.A.No.1303 of 2005 E :: 5 :: suit stood as hit by the principle of res judicata as embodied under Section 11 and by Order II Rule 2(3) of the Code of Civil Procedure. It was also found that the plaintiffs have no equity of redemption over the property as they are not the owners of the property and the partition deed alleged to have been entered into under Ext.A1 of the year 1124 is only a void document. 5. The questions came up for consideration are: (i) What would be the legal effect of Order II Rule 2(3) of the Code of Civil Procedure in a second suit for redemption of mortgage if it is based on a different and distinct cause of action, relating to a mortgage subsisted as on the date of earlier suit? **==> picture [360 x 12] intentionally omitted <==** dismissal of amendment sought to be incorporated in an earlier suit for redemption of mortgage, based on another mortgage subsisted over the property as on the date of suit, in a subsequent suit for redemption? R.S.A.No.1303 of 2005 E :: 6 :: (iii) Whether the trial court and the first appellate court justified in not considering the question of acknowledgment of existing mortgage and question of mutation while disposing of the suit? 6. The earlier suit under Exts.B5 and B6 admittedly instituted for the purpose of adjudicating redemption of mortgage subsisting over the property based on a document of the year 1961. The first defendant who contested the suit disputed the existence of such mortgage of the year 1961 over the property and it was accepted and ultimately the suit was dismissed. The amendment application filed in that suit for incorporating a prayer for redemption of mortgage based on Ext.A2 deed of the year 1118 M.E. was dismissed not on merits but on the ground that it was filed at a highly belated stage during the fag end of trial. In order to bring the matter within the purview of Section 11 CPC and the principle of doctrine of res judicata as embodied thereunder, what is material is adjudication by a competent R.S.A.No.1303 of 2005 E :: 7 :: court regarding the dispute which is directly and substantially in issue in an earlier suit. The earlier suit was admittedly instituted for the purpose of redemption of mortgage of the year 1961. In other words, no suit for redemption of mortgage of the year 1118 M.E. was filed or instituted. So, the question of redemption of an earlier mortgage of the year 1118 M.E. was not available for adjudication in the earlier suit. It was really not an issue directly or substantially in that suit. It was also not raised as an ancillary issue attached to the main issue. So, whatever may be the observation made in that suit either by the trial court or by the first appellate court regarding the documents relied on by the parties inclusive of the document showing existence of earlier mortgage of the year 1118 M.E. or its appreciation should be construed only for the purpose of adjudicating the issue involved in the said suit and nothing else. In short, the issue which is pertaining to the earlier instituted suit confined only to the question of existence of 1961 mortgage and its R.S.A.No.1303 of 2005 E :: 8 :: continuance and the right of equity of redemption. 7. Regarding the constructive res judicata, it is sometimes akin to the rule embodied under Order II Rule 2(3) CPC. Of course, the principle behind under Order II Rule 2 CPC is resting on the question of cause of action but constructive notice as embodied under Section 11 CPC covers the area in which a party ought to have been raised a contention may be based on the same cause of action. More emphasis should be given to the expression “cause of action” as incorporated under sub-rule (3) to Rule (2) of Order II CPC and it has to be read along with sub-rule (1) to Rule (2) of Order II CPC. The principle is that the person who seeks relief should incorporate all the reliefs which he is entitled to based on the same cause of action and shall not be permitted to claim in a subsequent suit. If the cause of action in the subsequent suit is different from that in the first suit, the subsequent suit is not barred. What the rule requires is that every suit shall include the whole of the claim arising from one R.S.A.No.1303 of 2005 E :: 9 :: and the same cause of action, and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant. Under the scheme of O 2, R 2 of the Code, it is necessary that parties must claim all reliefs as available at the time of filing of the suit. Any intentional omission bars the second suit. To make the rule applicable, the defendant must satisfy three conditions, namely (1) the previous and second suit must arise out of the same cause of action; (2) both the suits must be between the same parties; and (3) the earlier suit must have been decided on merit. Where there is no evidence to show that the cause of action is the same as in previous suit, the subsequent suit is maintainable. The principle under Order II Rule 2(3) is akin to the constructive res judicata incorporated by virtue of Explanation IV to Section 11 CPC by which any matter which might and ought to have been made a ground of defence or attack in a former suit for the purpose of Section 11 shall be deemed to have been a matter directly and substantially in issue in such a suit. But, ## R.S.A.No.1303 of 2005 E :: 10 :: Order II Rule 2 basically resting on 'cause of action' and omission to sue all reliefs based on the cause of action. The legal position was very much settled in _**Raman Ittiyathi & others v. Pappy Bhaskaran & others (1989 (2) KLJ 377)**_ and hence it is difficult to concur with the finding rendered by both the trial court as well as the first appellate court regarding the application of Order II Rule 2 CPC. 8. Yet another contention was also raised based on Ext.A1 document of partition of the year 1124 by the defendants alleging that the plaintiffs will not get any equity of redemption on the reason that what is allotted is towards the sub tarwad constituting Easwari Pillai and her children. The children includes one Sadasivan Pillai born to Krishna Pillai. It is contended that Sadasivan Pillai is the Karanavan of the tarwad and without the juncture of Karanavan no partition could be effected by virtue of Ext.A1 deed of the year 1124 and took support from the decisions drawn in _**Madhavi Amma v. Joseph Nadar**_ R.S.A.No.1303 of 2005 E :: 11 :: _**(AIR 1972 Kerala 133**_ ) and _**Kunhi Amma v. Appu Nair (1962 KLT 99)**_ . There may not be a quarrel on the legal proposition that no effective partition could be effected without the junction of Karanavan or eldest male member of the family. Unless the Karanavan or eldest male member of the family joined as a party to the partition there cannot be an effective partition. But the noninclusion of Sadasivan Pillai as party to Ext.A1 partition of the year 1124 M.E. is really an internal matter pertaining to the person who constitutes the sub tarwad or person litigating under sub tarwad and it may not be available to a person who claims interest over the property in derogation of the right, title and interest of the members of the sub tarwad. In short, it is an internal matter or right available to a person or a member of the sub tarwad or any person litigating under them and not to a stranger or a person who is agitating interest against the family members or against what is partitioned under Ext.A1 document. No such defence is available to the defendants herein. Further, the R.S.A.No.1303 of 2005 E :: 12 :: rule of acquiescence would come into operate besides estoppel unless the same was challenged by the members of the sub tarwad it would operate against them. The question of validity of Ext.A1 partition hence not available for consideration in this suit and the contentions raised in that behalf can only be rejected. 9. The suit for redemption was filed in the year 1995. The period agreed for redemption comes to six years. So, the time available for redemption comes to 30+6=36 years. Since it is a mortgage of the year 1118, the time would expire in 1979 unless there is an acknowledgment executed within the period of limitation as mandated under Section 18 of the Limitation Act. But that question though raised was not properly considered either by the trial court or by the first appellate court. The first appellate court simply accepted Ext.B5 judgment wherein it was observed that the time available for redemption of mortgage under Ext.A2 stood as barred by limitation. As discussed earlier, the said issue was not ## R.S.A.No.1303 of 2005 E :: 13 :: available in that suit especially when the amendment application was rejected refusing to incorporate the issue of redemption of mortgage under Ext.A2 document of the year 1118 and hence, the abovesaid observation can only be treated as appreciation of evidence based on the document of evidence for the purpose of adjudication of the issue involved in that suit. The learned counsel for the appellants submitted that there is acknowledgment subsequent to the year 1118 as mortgage right over the property was subjected to alienation by different documents. Since it was not considered either by the trial court or by the first appellate court, a remand of the matter to the trial court cannot be avoided. In the said circumstances, I am of the view that it is fit and proper to remand the matter back to the trial court for the purpose of adjudicating the question of any acknowledgment available to the party concerned. It is made clear that the remand of the matter is only for that purpose. In all other respects, what is observed by this Court in the earlier paragraphs would not be available for R.S.A.No.1303 of 2005 E ## :: 14 :: reconsideration. 10. In the result, the decree and judgment of both the trial court and the first appellate court are set aside only for the purpose of deciding the question of limitation based on the acknowledgment, if any, and the remand of the matter is only for the purpose of adjudicating the question of acknowledgment and the question of limitation as envisaged under Section 18 of the Limitation Act, regarding redemption of mortgage. Neither the trial court nor the first appellate court shall over turn any other finding rendered by this Court in this judgment. The regular second appeal is disposed of as above. No order as to cost of appeal. The parties shall appear before the trial court on 22.1.2019. ## **Sd/** ## **P.SOMARAJAN** **JUDGE** ahz/