Zeenath and Farha Sadique v. Bharathi Saraswathi

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 RSA.No. 1115 of 2009() ---------------------AS.65/2008 of SUB COURT,ALAPPUZHA OS.595/2003 of PRINCIPAL MUNSIFF,ALAPPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANT NOS.3 AND 4 ----------------------------------------- 1. ZEENATH ,AGED 41 YEARS, W/O.MUHAMMED SADIQUE, RESIDING AT VELIMPARAMBIL ERAVUKADU WARD, VADACKAL MURI, ALAPPUZHA WEST VILLAGE. 2. FARHA SADIQUE, D/O.MUHAMMED SADIQUE, ERAVUKADU WARD, VADACKAL MURI, ALAPPUZHA WEST VILLAGE. BY ADV. SRI.SUNIL J.CHAKKALACKAL RESPONDENT(S)/RESPONDENTS/PLAINTIFF: --------------- BHARATHI SARASWATHI , W/O.BHARATHAN RESIDING AT VELIMPARAMBIL, ERAVUKADU WARD, VADACKAL MURI, ALAPPUZHA WEST VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A.No.1115 of 2009 -------------------------------------Dated this the 28[th] day of October, 2009.** ## **JUDGMENT** Second Appeal is at the instance of appellants/defendant No.3 and 4, challenging concurrent finding entered by courts below as to title of respondent/plaintiff, fixing boundary and granting prohibitory/mandatory injunction. According to the respondent/plaintiff, suit property - 22 cents formed part of 44 cents which she acquired as per a decree in O.S.No.369 of 1979 and got possession as per delivery kaichit dated 29.9.1995 in E.P.No.211 of 1995. The suit property - 22 cents is red shaded portion in Ext.C4, plan accepted in O.S.No.369 of 1979. The remaining 22 cents is lying in two plots on the northwestern and eastern sides of the suit property. Respondent alleged that after the suit property was delivered over to her as per the delivery kaichit above referred, defendant Nos.1 and 2 and appellants trespassed into the portions of the suit property. Respondent therefore prayed for recovery of possession of the encroached portions, fixation of boundary and prohibitory and mandatory injunction. Defendant Nos.1 and 2 remained exparte through out. Appellants/defendant Nos.3 and 4 contended that it is incorrect to say that 22 cents was delivered to the respondent as per the kaichit relied on by her. They denied the title of respondent over the suit property and claimed that they have not encroached into any portion of that property. Trial court after evidence found that appellants and defendant Nos.1 and 2 encroached into portions of the suit **RSA No.1115/2009** 2 property and upholding the contention raised by the respondent, granted decree as prayed for. First appeal at the instance of appellants/defendant Nos. 3 and 4 failed. Hence this Second Appeal. 2. Questions raised in the Second Appeal by way of substantial questions of law are: i. Is the suit maintainable in law as it is filed suppressing the fact that there is a former decree with the same question heard and decided between the same parties? ii. When the appeal against a decree dismissing the suit is attempted to be withdrawn with permission, the appellate court passed a conditional order to pay a cost of Rs.5,000/- within a specified date and with specific observation that if the cost not paid within the stipulated time the appeal would be treated as dismissed, does not the original decree operate as res judicata or create a bar to file a fresh suit of the same nature? iii. Is it right in law that the lower appellate court came to the conclusion that the suit is not hit by the doctrine of res judicata as the appeal in the former suit has not been heard and finally disposed off? iv. Is the lower appellate court correct in finding that the 2[nd] appellant herein who was minor at the time of filing suit was properly represented in the suit when non-compliance with Order XXXII Rule 3 CPC would vitiate the decree? **RSA No.1115/2009** 3 3. So far as finding of the trial court as confirmed by the first appellate court regarding title of the respondent over the suit property is concerned, it is based on the evidence of respondent as PW1 and Exts.A1 to A11. Appellants did not adduce oral evidence but rest-contended by proving Exts.B1 to B3. Ext.C1 series are report, mahazar, sketch and plan prepared by the advocate commissioner. Respondent and her mother, Kurumba Bhargavi were allowed to redeem 2/4 of the 44 cents on deposit of half of the mortgage money and that is the red shaded portion in Ext.C4 in O.S.No.369 of 1979 (Ext.A2 marked in this case). Exts.A1 and A4, copy of judgment and final decree would show that respondent and her mother got right over the 22 cents described in the plaint schedule. On the death of her mother, respondent got the property absolutely. Ext.A9 is the copy of delivery kaichit which states that the property was delivered over to the respondent. Appellants produced Ext.B3, copy of the execution petition preferred by the respondent subsequent to Ext.A9 complaining that the amin has not effected delivery of the property and portions of the suit property are yet to be delivered over to her. Argument based on Ext.B3 is that the said document would show that the entire property was not delivered to the respondent. Trial court observed that there is no evidence as to what steps were taken on Ext.B3 or as to any order passed thereon and without such order, it is not possible to say whether complaint of the respondent was justified. First appellate court also has taken that view . I do not find reason to think that the finding is perverse and required interference in this Second Appeal. 4. Another question raised for a decision is that proceedings to the **RSA No.1115/2009** 4 extent it concerned appellant No.2 is null and void since she was a minor at the time of institution of the suit but no steps under Order 32 Rule 3 of the Code of Civil Procedure (for short, “the Code”) were taken to appoint a guardian for her. Therefore the decree to the extent it concerned appellant No.2 is vitiated by material illegality and cannot stand, it is contended. In this connection learned counsel placed reliance on the decision of the Supreme Court in **General Manager, Security Paper Mill, Hoshangabad v. R.S.Sharma and** **others [AIR 1968 SC 954]** . According to the learned counsel, in the light of that decision and the requirements under Order 32 Rule 3 of the Code, in the absence of an application supported by affidavit to appoint a guardian for appellant No.2, the proceedings against her is vitiated. 5. This contention does not appear to have been urged before the trial court for, it is seen from the copy of the written statement filed by the appellants and given to me for perusal by learned counsel for appellants that the written statement was filed by appellant No.1, mother for and on behalf of herself and representing her minor daughter, appellant No.2 who then was aged 16 years. No contention is raised in the written statement that the absence of an application under Order 32 Rule 3 of the Code vitiated the proceedings. In the plaint also it is stated that appellant No.2/defendant No.4 being a minor is to be represented by appellant No.1/defendant No.3, mother and that has been accepted by the appellants without a demur. This question was urged before the first appellate court. Learned Sub Judge has referred to the issue in paragraph No.2 of the judgment in detail referring to the various proceedings **RSA No.1115/2009** 5 taken by appellant No.1 on her behalf and also on behalf of appellant No.2 in the trial court. Moreover, it has to be born in mind that at the time the first appeal was filed appellant No.1 was admittedly a major and she has elected to continue the proceeding. If according to her proceedings taken against her represented by her mother were not to the protection of her interest, she could have raised appropriate contentions in that way. Instead, she has elected to continue the proceedings. It is also not shown that appellant No.1 who represented appellant No.2 in the trial court did not protect her interest. Hence respondent not filing a separate application supported by an affidavit and getting appellant No.1, natural guardian appointed as guardian for appellant No.2 by a formal order is only an irregularity which has not vitiated the trial or other proceeding. The decision relied on by the learned counsel only stated that a decree passed against a minor not represented by a guardian is null and void. That was a case where no guardian was appointed for the minor and a decree was passed against the minor unlike the case on hand where the minor was represented by the natural guardian and she effectively represented the minor. Therefore the contention that there is violation of Order 32 Rule 3 of the Code and it vitiated the trial cannot be accepted and in the light of the statutory provisions and settled position of law, this question does not require a debate in this appeal so as to bring it in the category of a substantial question of law. 6. Then it is contended that respondent had earlier filed O.S.No.935 of 1999 against appellants and others for recovery of possession of a disputed portion of the property but, that suit was dismissed as withdrawn with leave to **RSA No.1115/2009** 6 the respondent to file fresh suit on payment of cost. According to the learned counsel cost ordered by the court was not paid and hence the judgment in O.S.No.935 of 1999 would operate as res judicata on the respondent. At any rate, it is contended that bar under Order 23 Rule 1(4)(b) of the Code would apply and the present suit is barred. 7. Ext.B1 is the copy of judgment and Ext.B2, copy of decree in O.S.No.935 of 1999. That suit was dismissed. Respondent preferred A.S.No.189 of 2002 and while the appeal was pending she filed application to withdraw the suit with liberty to file a fresh suit. That application was allowed by learned Sub Judge, Alappuzha as per Ext.A5, dated 1.2.2005 on condition of payment of cost of Rs.5,000/-. Admittedly cost was not paid but courts below observed that the present suit was filed even before withdrawal of O.S.No.935 of 1999 and hence the bar under Order 23 Rule 1(4) of the Code did not apply. I am in agreement with the view taken by the courts below. That also involves no substantial question of law requiring consideration in Second Appeal. 8. Based on Ext.A2, CC of the plan in O.S.No.369 of 1979 and Ext.C1 (c), the plan obtained in this case courts below found that portions of the suit property are in the possession of appellants and defendant Nos.1 and 2. Appellants have not produced any document to show that they have title over the portion in their possession. There is no other contention raised by the appellants to defeat title claimed by the respondent and found in her favour. In that situation, courts below rightly found on evidence that respondent has title over the disputed portions and that she is entitled to recover possession of the **RSA No.1115/2009** 7 same. On going through the judgment under challenge and hearing learned counsel I do not find any substantial question of law involved in this appeal requiring its admission and notice to the respondent. Resultantly, the Second Appeal fails. It is dismissed in limine. I.A.No.2543 of 2009 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**