IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 881 of 1997(E)
1. RAGHAVAN
... Petitioner
Vs
1. SUNDARI
... Respondent
For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)
For Respondent :SRI.C.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :13/01/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 881 of 1997
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Dated this the 13th day of January, 2011.
JUDGMENT
The plaintiff in O.S. 90 of 1989, whose suit was
dismissed by the trial court and which was confirmed in
appeal, is the appellant. During the pendency of this
appeal, he passed away and his legal representatives
have been brought on the party array as additional
appellants 2 to 6.
2. The suit was one for declaration of <th
share in plaint A schedule property, which had an
extent of 1.15 acres and is comprised in Re-survey
No.72/1. According to the plaintiff, the plaint schedule
property was obtained by the grand father of the plaintiff
as per Ext.A1 dated 10.8.1937, which was a registered
lease deed. The grand father, namely, Koraga, eversince
Ext.A1, was in absolute possession and enjoyment of the
property. He had a son by name Krishnan, who
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predeceased him. The plaintiff is the son of said Krishnan
and the first defendant is his widow. Defendants 2 and 4 are
the children of said Krishnan and the third defendant is the
husband of the second defendant. Consequent on the death
of Koraga, according to the plaintiff, the plaint schedule
property devolved on plaintiff, first defendant and
defendants 2 and 4 and they have been in absolute
possession and enjoyment of the property. On the basis of
these allegations, the suit was laid for declaration and
partition.
3. The suit was mainly contested by the fifth
defendant. He denied the case set up by the plaintiff and
contended that the suit was a collusive affair between the
plaintiff and defendants 1 to 4. According to this defendant,
the suit property was obtained on chalageni lease by one
Kalliyani from the Kudlu family and thereafter she was in
actual possession and enjoyment of the same. She along
with the land owner of the property filed J Form in S.M.
proceedings No.15 of 1975 and Kalliyani was issued with a
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purchase certificate, namely, Ext.B3 dated 5.6.1976.
Kalliyani thereafter assigned the suit property to the fifth
defendant as per Ext.B1 dated 4.10.1980. According to him,
defendants 1 to 3 were permitted to reside in the house in
the property and when they refused to vacate, he had to
institute O.S. 271 of 1981 before the Munsiff’s Court,
Kasaragod for recovery of possession of the house. That suit
was decreed. Appeal filed by defendants 1 to 4 was
dismissed and so also the second appeal before this court.
Thus defendants 1 to 4 were bound to surrender the building
and the property to the fifth defendant. It is in order to get
over that decree that the present suit has been filed.
According to the fifth defendant, the suit is without any
bona fides and is only a delaying tactic adopted by the
plaintiff and defendants 1 to 4 to protract the execution
proceedings in O.S. 271 of 1981. Accordingly, he prayed
that the suit be dismissed.
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4. It appears that during the pendency of the suit,
fifth defendant died and his legal heirs were brought on the
party array as additional defendants 6 to 14.
5. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws. 1 and 2 and documents marked as Exts.A1 to A10
from the side of the plaintiff. The contesting defendant
examined D.W.1 and had Exts.B1 to B19 marked. Exts. C1
and C2 are the commission report and plan.
6. The trial court found the case set up by the fifth
defendant to be true and was of the opinion that the
judgment and decree in O.S. 271 of 1981 will be binding on
the plaintiff also. According to the trial court, the plaintiff in
this suit has raised a similar claim as that of defendants 1 to
4 in O.S. 271 of 1981 and both the plaintiff and defendants 1
to 4 were setting up title on the basis of the same
document. The suit was accordingly dismissed. The matter
was carried in appeal as A.S. 32 of 1995 before the District
Court, Kasaragod. The lower appellate court, after an
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elaborate consideration of the materials before it, concurred
with the trial court and dismissed the appeal. Hence this
Second Appeal.
7. Notice has been issued on the following
substantial questions of law:
“1. Is there not a presumption in favour of Ext.A1
document dated 10.8.1937, by virtue of the
provisions contained under Section 90 of the
Indian Evidence Act and therefore was not the
said document and the rights thereunder liable to
be upheld.
2. In the absence of any challenge to Ext.A1
either in the pleadings or by any other process
known to law, was not Ext.A1 and the rights
thereunder liable to be upheld.
3. Is not the impugned decision vitiated by reason
of misreading of the evidence and other materials
and also by reason of a totally erroneous
appreciation of the evidence available in the case.
4. Can the right of a party to an item of property
be negatived applying principles of res-judicata,
when admittedly he was not a party to the
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proceedings on the basis of which such a plea is
raised.
5. Whether under the facts and circumstances of
the case, the plea of the plaintiff is barred by the
principles of res-judicata.
6. Is a certificate of purchase or related
proceedings to which the plaintiff is not a party,
binding on him.
7. Is not the impugned decision vitiated by reason
of non compliance with the requirements of
Section 125(3) of the Kerala Land Reforms Act.
8. Whether the courts below were right in
entering a finding regarding the tenancy claim of
deceased Koraga vis-a-vis the claim of Kallyani,
without a reference to the Land Tribunal under
Section 125(3) of the Kerala Land Reforms Act.
9. Whether the court below has properly
appreciated and applied the provisions contained
in Article 58 of the Limitation Act.
10. When admittedly the plaintiff is an heir of
deceased Koraga to whom the property belonged
by virtue of Ext.A1, when does the period of
limitation for him to claim partition commence
and is not a suit filed within 3 years of the refusal
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to accede to the claim partition made by the
plaintiff, within time.
11. When the plaintiff is admittedly a legal heir of
deceased Koraga, is not the suit filed within 3
years of 1.8.1989, viz, the date on which the
demand for partition was refused, within time.
12. Whether under the facts and circumstances,
the courts below were right in dismissing the suit.”
8. Learned counsel appearing for the appellant
pointed out that the courts below were not justified in
coming to the conclusion that the judgment and decree in
O.S. 271 of 1981 are binding on the plaintiff also. Attention
was drawn to the fact that in one portion of the judgment
the trial court observed that the property covered by Exts.A1
and B1 are one and the same. In another portion,
observation is otherwise. The lower appellate court
observed that Ext.A1 relates to a different property. It was
pointed out that the lower appellate court had also
observed that the property covered by Exts.A1 and B1 is
different. This is contrary to the commission report, which
has not been set aside. If the property covered by Exts.A1
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and B1 are the same, context of the case changes and it has
a material bearing on the issue involved in the case. It is
therefore contended that the judgments and decrees of the
courts below are not in accordance with law.
9. It is seen that both the courts below have taken
aid of Section 11 Explanation VI to hold that the plaintiff is
bound by the decree in O.S.271 of 1981. The said provision
reads as follows:
“11. Res judicata.- 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.
Explanation VI. Where persons litigate bona fide
in respect of a public right or of a private right
claimed in common for themselves and others, all
persons interested in such right shall, for the
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purposes of this section, be deemed to claim
under the persons so litigating.”
10. A reading of the above provision shows that
the essential condition necessary to attract the above
provision is that the interest of the person concerned had
really been represented by others in another suit. It must be
shown that the interest of the person concerned was looked
after in a bona fide manner. If there is any conflict of
interest between the person concerned and those who were
parties in the earlier litigation, then the section has no
application. So is the case when it is proved that there was
collusion or fraud in the earlier litigation. Same is the
position if it is shown that there has been negligence in the
earlier litigation or that there was mala fides on the part of
the person who had set up title, which was common to the
person concerned also.
11. It cannot be disputed that the properties
involved in O.S.271 of 1981 and the present suit are one and
the same. It may not be true to say that the property
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covered by Exts.A1 and B1 are not same. The commissioner
has categorically stated that the properties are identical and
as rightly pointed out by the learned counsel for the
appellants, commission report has not been set aside.
12. True, the plaintiff herein was not a party to
O.S.271 of 1981. In O.S.271 of 1981, defendants 1 to 4 in
this suit has set up title on the basis of same document as is
now done by the plaintiff and had contested the suit. It was
found that the plaintiff’s case in O.S. 271 of 1981 was true
and a decree was granted in his favour. It was confirmed in
appeal also. That decree has become final. It is not in
dispute that the title set up by the plaintiff in the present
suit is identical to the title set up by defendants 1 to 4 in
O.S.271 of 1981. Even though the plaintiff tried to take the
stand that he was not aware of O.S.271 of 1981, both the
courts below have found that the evidence is clear to the
effect that he was fully aware of the proceedings and he
stood by and watched the same. There is nothing to show
that there was any fraud played by defendants 1 to 4 in the
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earlier suit or there was any lack of bona fide contest in the
earlier suit. There is nothing to show that there was no fair
and just trial in O.S.271 of 1981. Ext.B19, which is the copy
of the deposition of the plaintiff in this suit in S.M.15 of 1975
would clearly reveal that he was aware of the pendency of
O.S.271 of 1981 instituted by the fifth defendant herein
against defendants 1 to 4. It is also interesting to note that
the S.M. proceedings, in which purchase certificate was
issued to Kalliyani, was unsuccessfully challenged by
defendants 1 to 4.
13. It is true that the fifth defendant, who
instituted O.S. 271 of 1981 had not made the plaintiff herein
a party to the suit. But one has to appreciate the cause of
action in the suit. The case of the plaintiff in O.S.271 of
1981 was that he had permitted defendants 1 to 4 to reside
in the house and when they refused to vacate the same he
had instituted the suit. Defendants 1 to 4 then set up
common title in the suit property, which is similar to the title
set up in the present suit and tried to establish the same. It
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could not therefore be said that the omission to array the
plaintiff herein as a defendant in O.S.271 of 1981 was
deliberate and with ulterior motive. A perusal of the
proceedings in O.S.271 of 1981 would clearly show that the
contest was severe and defendants 1 to 4 in the said suit
had very effectively contested the suit. A reading of Exts.
B13 to B15 will leave one in no doubt in that regard.
14. There is nothing to show that there is any
conflict of interest between defendants 1 to 4 and the
plaintiff herein. In fact the evidence is to the contrary.
There is nothing to show that O.S. 271 of 1981 was a
collusive suit in order to defeat the rights of the plaintiff in
the present suit. The courts below have referred to several
decisions on this aspect and it is unnecessary to repeat
them.
15. It is trite that there may be circumstances
when a person may be bound by the decree in a suit even
though he may not be eo nominee a party to the same. One
such situation is covered by Section 11 Explanation 6. In
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such a case, the earlier decision operates as res judicata in a
subsequent suit. Of course, the earlier suit must be a bona
fide one and must have been tried fairly and justly.
16. At any rate, even assuming that the decision
in O.S.271 of 1981 may not act as res judicata as such,
still it will have considerable impact on the present suit.
17. One cannot omit to note that Kallyani, the
predecessor in interest of the fifth defendant had obtained
purchase certificate in respect of the property. As already
noticed, the authority under the Land Reforms Act had come
to the conclusion that defendants 1, 2 and 4 had no manner
of right over the suit property. That was also the finding in
O.S. 271 of 1981.
18. On a re-evaluation of the evidence, it can be
easily seen that the attempt of the plaintiff in the present
suit is only to protract and delay the execution proceedings
in O.S. 271 of 1981 as rightly pointed out by the fifth
respondent in the suit. Defendants 1 to 4, who had set up
identical title as that of the plaintiff in the present suit in
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O.S.271 of 1981 and had failed to establish the same. The
plaintiff, who sets up an identical claim has necessarily to be
bound by the decision in O.S. 271 of 1981.
Both the courts below were perfectly justified in
holding against the plaintiff. No question of law, much less
any substantial question of law arises for consideration in
this appeal. This appeal is without merits and it is
accordingly dismissed. Parties will suffer their respective
costs before this court.
P. BHAVADASAN,
JUDGE
sb.