Thulasi v. C.K. Prabhakaran and Santha and Gomathy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **THURSDAY ,THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **FAO (RO).No. 164 of 2017** **AGAINST THE JUDGMENT DATED 31-07-2017 IN AS 6/2013 of SUB COURT, NEDUMANGAD** **AGAINST THE JUDGMENT & DECREE DATED 26-11-2012 IN OS 493/2009 of PINCIPAL MUNSIFF COURT, NEDUMANGAD** ## **APPELLANT/ADDITIONAL 3RD RESPONDENT IN THE FIRST APPEAL:** ## **THULASI** **AGED 48 YEARS, W/O.KRISHNANKUTTY, THADATHARIKATHU VEEDU, KUSARCODE, CHELLAMCODE MURI, NEDUMANGAD, THIRUVANANTHAPURAM.** **BY ADVS. SRI.RAM MOHAN.G. SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD** **RESPONDENTS/APPELLANT & RESPONDENTS 1 AND 2 IN THE FIRST APPEAL (PLAINTIFF AND DEFENDANTS 1&2):** **1 C.K.PRABHAKARAN AGED 49, S/O.KUNJAN, KIZHAKKUMKARA PUTHUVAL PUTHEN VEEDU, POOVATHOOR, NEDUMANGAD VILLAGE, THIRUVANANTHAPURAM.** **2 SANTHA, AGED 52, D/O.BHAMI, THEKKUMKARA PUTHEN VEEDU, KUSARCODE, NEDUMANGAD, THIRUVANANTHAPURAM.** - **3 GOMATHY, AGED 67, CHAMAVILA VEEDU, POOVATHOOR, NEDUMANGAD, THIRUVANANTHAPURAM.** **R1 & R3 BY ADVS.SRI.P.ALI SRI.A.MUHAMMED HASHIM** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 31.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO (RO).No. 164 of 2017** 2 ## **JUDGMENT** Heard the learned counsel for the appellant and respondents. 2. 3[rd] respondent in A.S.No.6 of 2013 before the Court of Subordinate Judge, Nedumangad is the appellant. She is not a party to the original suit. She is a _pendente lite_ purchaser of the property from 1[st] defendant in the suit. Contesting respondent in this appeal is the plaintiff. 3. Suit is one for declaration that the decree passed in O.S.No.643 of 2001 before the Court of Munsiff, Nedumangad was obtained by perpetrating fraud on the plaintiff by his assignor (2[nd] defendant in the suit) and also by the collusion of defendants together. Further, the plaint B schedule property, which was incorporated by way of an amendment, is sought to be recovered on the strength of the plaintiff's title. In addition to that, it is also prayed for fixation of boundary by separating the plaint A schedule property and the property belonging to the 1[st] defendant, by constructing a retention wall. Further more, prohibitory injunction reliefs are also claimed. **FAO (RO).No. 164 of 2017** 3 4. Relevant pleadings are as follows: Plaint A schedule property originally belonged to the husband of 2[nd] defendant namely, Sukumaran. The property is comprised in Resurvey Nos.162/41 and 162/42. Later, Sukumaran died. 2[nd] defendant and other legal heirs of Sukumaran executed Ext.A3 in favour of the plaintiff. Plaintiff effected mutation in his name and he is in exclusive possession of the property. According to him, the defendants have no manner of right in the property. 1[st] defendant's property is on the north-eastern side of plaint A schedule property. There was a demarcating boundary existing between the properties. While so, the Commissioner and Surveyor deputed in O.S.No.643 of 2001 visited the property and tried to set out boundary, by including plaint A schedule property. Since the plaintiff raised objection, the boundary could not be put up. On enquiry it was understood that the 1[st] defendant filed a suit against the 2[nd] defendant as O.S.No.643 of 2001 for fixation of boundary and obtained an _exparte_ decree in her favour colluding with each other. Exts.B1 and B2 are the judgment and decree in the above suit. According to the plaint case, that suit was filed without impleading the legal heirs of Sukumaran and the plaintiff. **FAO (RO).No. 164 of 2017** 4 At the time of plaintiff's purchase of the property, he was unaware of the pendency of suit. No one revealed that fact to the plaintiff at the material time. Thereafter, the plaintiff filed E.A.No.211 of 2005 in E.P.No.132 of 2004 in O.S.No.643 of 2001 setting forth his rights. But that application was dismissed. The petition is produced as Ext.B3. Erroneously a boundary was put up separating the properties. The boundary was put up based on an incorrect plan in the earlier case. Therefore, the plaintiff approached the trial court for the aforementioned reliefs. 5. 1[st] defendant filed a written statement contending that there was collusion between the plaintiff and 2[nd] defendant. 1[st] defendant is in possession of 3 cents of property comprised in Survey No.2698/16. When the 2[nd] defendant destroyed the southern boundary of the property, the 1[st] defendant filed O.S.No.643 of 2001. After obtaining the summons, the defendant in that suit (2[nd] defendant) colluded with the plaintiff herein and a sale deed was executed in his favour. That document was created during the pendency of O.S.No.643 of 2001. Therefore the decree in O.S.No.643 of 2001 binds the plaintiff. After the suit, he filed an execution application, which was also dismissed. According to **FAO (RO).No. 164 of 2017** 5 the 1[st] defendant, the claim in the suit is barred by _res judicata_ by virtue of the earlier proceedings. 6. Subsequently the plaint was amended ,incorporating the aforementioned relief of recovery of possession. Later, the written statement was amended by the defendant contending that the suit in the amended form is not maintainable. 2[nd] defendant remained _exparte_ . The court below raised the issues for trial. Exts.A1 to A5 were marked on the side of the plaintiff and Exts.B1 to B5 on the side of the 1[st] defendant. Exts.C1 series are the Commissioner's plan and report. Two witnesses were examined by the plaintiff and none was examined by the 1[st] defendant. 7. Considering the evidence before the trial court, it dismissed the suit finding that the decree passed in O.S.No.643 of 2001 binds the plaintiff. On a perusal of the judgment, I find no cogent reasons stated by the trial Judge for entering the findings. 8. The plaintiff took up the matter in appeal before the Sub Judge, Nedumangad in A.S.No.6 of 2013. On a reappraisal of the evidence, the lower appellate court concluded the issue regarding _res judicata_ against the present appellant and remanded the case with the following purpose: **FAO (RO).No. 164 of 2017** 6 _In the light of finding the point No.1 to 7 the impugned judgment and decree of the court below is set aside and the matter is remanded to the court below for fresh disposal by giving an opportunity to the plaintiff to amend the plaint by incorporating the property of the first defendant in the schedule of the plaint in that event respondents/defendants 1 and 3 will get an opportunity to file additional written statement and the court is at liberty to frame additional issue Whether the defendants 1 and 3 perfected title by adverse possession on the plaint B schedule property sought to be recovered from them ? The parties are at liberty for adducing further evidence including the examination of the commissioner and surveyor who prepared Ext.C1 and C1(a) plan. Point is answered accordingly._ _In the result the appeal is allowed. The impugned judgment and decree of the court below is set aside. The matter is remanded to the court below for fresh disposal by considering the reasons stated in point No.8. The parties are directed to appear before the court below on 2.09.2017. Considering the facts and circumstances the parties shall bear their respective costs._ 9. Learned counsel for the appellant contended that the approach made by the lower appellate Judge is incorrect. It is pointed out that the court below found that the issue of _res judicata_ will not arise in this case because the subject matter in **FAO (RO).No. 164 of 2017** 7 this case is different from the subject matter in O.S.No.643 of 2001. This is a fundamental mistake. For clarity, Section 11 CPC is reproduced here under: _No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court._ 10. On a careful perusal of the above provision, it can be seen that what is important for decision of _res judicata_ is not identity of the subject matter, but identity of the matter in issue. The Section clearly says that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in the former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title in a court of competent jurisdiction. The importance lies in the word 'the issues in the present suit must be same as the issues which arose directly and substantially in the former suit and it should have been tried **FAO (RO).No. 164 of 2017** 8 between the same parties or between parties under whom they or any of them claim'. Further importance is on the fact that the parties must be litigating under the same title. Therefore, going by any reason, I cannot agree with the observation by the lower appellate Judge, as the identity or lack of identity of subject matter can never be a reason to find that Section 11 CPC does not apply. There is complete lack of application of mind by the lower appellate Judge. 11. Another illegality seen in the impugned judgment is that the lower appellate Judge has relied on some decisions without understanding the facts and circumstances in those decisions in which the legal principles were stated. This Court has, in strongest words, deprecated the practice of the subordinate courts in relying on the head notes of the reported decisions. In _**Kunhikrishnan T.K. v. State of Kerala and another [2018 (1) KHC 813],**_ it has been expressly stated that the head note of reported decision does not form part of the judgment and it is only a contribution by editor of the law journal. The lower appellate Judge has committed a grave mistake of relying on the head notes of two decisions, that too without **FAO (RO).No. 164 of 2017** 9 understanding the fundamental principles in Section 11 CPC, he has applied head notes to the present facts. This is clearly illegal. 12. It is pointed out by the learned counsel for the appellant that brushing aside of the appellant's plea that Section 52 of the Transfer of Property Act (in short, the T.P.Act) applies to this case, was also improper. According to the lower appellate Judge, in one sentence it has been held that principles in Section 52 of the T.P.Act is not applicable to this case. On a careful reading of Section 52 of the T.P.Act, it can be seen that a _pendente lite_ purchaser is bound by the result of the suit whether he was aware or unaware of the pendency of the suit. This is the cardinal distinction between Sections 52 and 53 of the T.P.Act where in the latter section, a bondafide purchaser is saved. This principle also was not considered by the lower appellate Judge. 13. On going through the impugned judgment, I find that the court below committed grave error. Therefore the substantial questions of law arising in this appeal namely, _1. Did not the lower appellate court act contrary to law, in exceeding the jurisdiction conferred on it under Order 41 Rule 23A of the Code of Civil Procedure ?_ _2. Did not the lower appellate court act contrary to law_ **FAO (RO).No. 164 of 2017** 10 _in finding that the present suit is not barred by the principles of res judicata by ignoring Ext.B1 judgment and B2 decree in O.S.No.643 of 2001 as well as Ext.B3 claim petition E.A.No.211 of 2005 filed by the plaintiff herein in O.S.No.643 of 2001 ?_ _3. Did not the lower appellate court act contrary to law in finding that the earlier decree is not binding on the plaintiff herein when the alienation effected in favour of the plaintiff herein by the 2[nd] defendant is hit by the principles of lis pendence because of the pendency of the earlier suit ?_ _4. When the very cause of action for filing the present suit is the execution and satisfaction of the earlier decree for fixation of boundary in O.S.No.643 of 2001 of the Munsiff Court, Nedumangad, is not the present suit barred under Section 47 of the Code of Civil Procedure ?_ are to be found in favour of the appellant. 14. However, it is found that the trial court judgment is also unsatisfactory. Hence, it appears a remand is essential for doing justice between the parties. In the result, the judgment passed by the Sub Judge, Nedumangad in A.S.No.6 of 2013 is hereby set aside. However, the matter is remanded to the trial court for a fresh disposal, after **FAO (RO).No. 164 of 2017** 11 affording the parties an opportunity to take steps, if necessary and to adduce fresh evidence if necessary. The trial court shall dispose of the case considering all the issues arising in this case untrammeled by any of the observations contained in the lower appellate court's judgment. The parties shall appear before the trial court on 6.3.2019. The parties are directed to bear the costs. Registrar (Subordinate Judiciary) shall send a copy of this judgment to the lower appellate court Judge (then Sub Judge), wherever he works now for future guidance. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD** **JUDGE** jv