Sukumaran v. Sulaiman S/o. Yusuf and Basheer S/o. Yusuf

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 21ST DAY OF AUGUST 2013/30TH SRAVANA, 1935 SA.No. 765 of 2002 ( ) --------------------------- AS 258/1992 of 1ST ADDITIONAL DISTRICT COURT, PALAKKAD OS 332/1988 of ADDITIONAL MUNSIFF COURT, PALAKKAD APPELLANT/1ST RESPONDENT/1ST DEFENDANT: ----------------------------------------------------- SUKUMARAN, S/O. THILLA, KURATHU, MANKURUSSI AMSOM, DESOM, PALAKKAD DISTRICT BY ADVS.SRI.K.MOHANA KANNAN RESPONDENTS/APPELLANTS/PLAINTIFFS: ------------------------------------------------- 1. SULAIMAN S/O. YOUSUF, MANKURUSSI AMSOM, DESOM, PRESENTLY GENERAL MERCHANT, POLLODY MANKARA AMSOM, MANKARA P.O., PALAKKAD DISTRICT. 2. BASHER S/O. YOUSUF, MANKURUSSI AMSOM, DESOM, NOW RESIDING AT KANJIRATHUPARAMBATH EDATHARA P.O., PALAKKAD DISTRICT THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 0708-2013, THE COURT ON 21-08-2013 DELIVERED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Second Appeal No.765 of 2002 ----------------------------------------------Dated 21[st] August, 2013.** ## **J U D G M E N T** This Second Appeal is filed by the first defendant in O.S.No.332 of 1988 on the file of the Additional Munsiff Court, Palakkad. Respondents 1 and 2 herein were the plaintiffs 1 and 2 in that suit, which was filed by them for permanent prohibitory injunction. 2. The facts of the case in O.S.No.332 of 1988 are briefly as follows : The plaintiffs purchased the plaint schedule property as per assignment deed No.508/88 from the first defendant's brother Balakrishnan and thereafter, they are in possession of the same. Balakrishnan obtained this property as per the partition in his family. By mistake, this property was scheduled in the partition in the share of one Ayyappan, who is the brother of Balakrishnan and subsequently, when it came to the knowledge, Ayyappan assigned the said property in the name of Balakrishnan as per deed No.1703/83. On 24.4.88, the defendants along with some others obstructed the plaintiff from ploughing the property and they tried to destroy the 2 S.A. No.765 of 2002 'edavarambu' (ridge between the properties) and to annex the same to the first defendant's property. Hence, the suit was filed. 3. The contention raised by the first defendant is that the plaintiffs have no right over the property and they are only name lenders and denied possession by the plaintiffs over the respective properties and advanced a case that at the time of partition, it was agreed that the share of Balakrishnan will be assigned to the first defendant for a consideration of `25,000/and as such, he paid the entire amount to Balakrishnan and he is in possession of the property. He paid the entire sale consideration agreed. He is in possession of the property for more than 12 years openly, uninterruptedly and continuously to the knowledge of Balakrishnan. The plaintiffs have not purchased the property for valid consideration and the alleged sale deeds have no legal effect at all. These properties are lying along with the first defendant's property as one compact plot without separating ridges and hence they prayed for dismissal of the suit. 4. The second defendant did not file any written 3 S.A. No.765 of 2002 statement. Defendants 3 and 4 remained ex parte. During the pendency of the suit, the second defendant died and nobody was impleaded as his legal heirs. Another suit was filed against the same defendants as O.S.No.333 of 1988 by another plaintiff, who purchased the property in that suit as per sale deed No.507/88 and that suit was also filed for permanent prohibitory injunction against the same defendants. The first defendant in that suit raised the same contentions as raised by him in O.S.No.332 of 1988. 5. Before the Munsiff Court, both O.S.No.332 and 333 of 1988 were jointly tried and evidence was recorded in O.S.No.332 of 1988. PW1 to PW3 and DW1 were examined and Exts.A1 to A8, Exts.B1 to B15, C1 and Ext.X1 were marked. The learned Munsiff, on considering the evidence on record, found that the plaintiffs in both the suits are not in possession of the plaint schedule property in each case and both the suits were dismissed. Against that judgment and decree dismissing O.S.332 of 1988, plaintiffs 1 and 2 filed A.S.No.258 of 1992 before the 1[st] Additional District Court, Palakkad, which was allowed and the judgment and decree in O.S.332 of 1988 was 4 S.A. No.765 of 2002 set aside and that suit was decreed, granting permanent prohibitory injunction restraining the defendants from encroaching or trespassing upon any portion of the plaint schedule property and causing obstruction to the agricultural works in the plaint schedule property by the plaintiffs and causing any kind of obstruction to the peaceful possession of the plaintiffs over the plaint schedule property. Against that judgment and decree, the first respondent/first defendant filed this Second Appeal. 6. Heard the learned counsel for the appellant. 7. The learned counsel for the appellant submitted that the lower appellate court has failed to note that the one and the only question that arose for decision was the question of possession and since the plaintiffs have failed to prove possession, the lower appellate court ought to have dismissed the appeal. The learned counsel for the appellant, relying on the decision reported in **Avira Joseph** v. **Varghese Mathai and others** (2010(3) KHC 564) argued that since the plaintiff in O.S.No.333 of 1988 has not filed any appeal against the dismissal of the suit, the decision in that suit that the first S.A. No.765 of 2002 5 defendant was in possession of the property will operate as _res judicata_ in A.S.No.258/1992. 8. The question of law that arises for determination in this Second Appeal is whether the decree in O.S.No.333/88 left unchallenged will operate as _res judicata_ in A.S.No.258/1992. 9. There is no dispute that the plaintiffs in O.S.No.332 of 1988 and the sole plaintiff in O.S.No.333 of 1988 are different persons. It is true that the defendants 1 to 4 in both the suits are the same persons. The properties in both the suits are different. The plaintiffs in both the suits obtained their properties from one Balakrishnan. In both the suits, the previous title of Balakrishnan over the respective properties was not considered. Since the plaintiffs in both the suits are different and properties are also different, the finding in O.S.No.333 of 1988 will not operate as _res judicata_ in A.S.No.258 of 1992 filed against the judgment and decree in O.S.No.332 of 1988. Therefore, I am of the view that the lower appellate court is fully justified in finding that the doctrine of _res judicata_ will not be attracted by virtue of non filing of appeal 6 S.A. No.765 of 2002 as against the judgment and decree in O.S.No.333 of 1988. 10. Ext.A1 is the sale deed dated 11.3.1988 executed by Balakrishnan in favour of the plaintiffs in O.S.No.332 of 1988 in respect of the plaint schedule property. In the partition, it was intended to allot the plaint schedule property to the share of Balakrishnan, but it was mistakenly included in the share of Ayyappan, the brother of Balakrishnan. Therefore, Ayyappan executed Ext.A2 assignment deed dated 28.7.1983 in favour of Balakrishnan. Ext.A4 is another assignment deed dated 28.7.1983 executed by Ayyappan in favour of the first defendant Sukumaran. Ext.A1 shows that the possession of the plaint schedule property was handed over to the plaintiffs by Balakrishnan. PW3 Balakrishnan deposed that Ext.A1 sale deed was executed by him in respect of the plaint schedule property in O.S.No.332 of 1988 in favour of the plaintiffs and that he handed over possession of that property to the plaintiffs. PW3 deposed that prior to the execution of Ext.A1 sale deed, he was in possession of the plaint schedule property. Even though the first defendant produced basic tax receipts prior to Ext.A1 sale deed, he has not produced any S.A. No.765 of 2002 7 basic tax receipts after the execution of Ext.A1 sale deed. The lower appellate court, based on the oral testimony of PW1 to PW3 and on considering Exts.A1 to A8, came to the conclusion that the plaintiffs in O.S.332 of 1988 are in possession of the plaint schedule property. Since the first defendant claims possession over the plaint schedule property, the apprehension of the plaintiffs that defendants will trespass into the plaint schedule property is true and therefore, the lower appellate court is fully justified in decreeing the suit. Accordingly, this Second Appeal is dismissed, as it is without any merits. There is no order as to costs. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)