IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 641 of 1997(B)
1. MADHAVI
... Petitioner
Vs
1. NADARAJAN
... Respondent
For Petitioner :SRI.M.C.SEN (SR.)
For Respondent :SRI.K.JAJU BABU
The Hon'ble MR. Justice P.BHAVADASAN
Dated :02/07/2010
O R D E R
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
S.A. No. 641 of 1997
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 2nd day of July, 2010.
JUDGMENT
The plaintiffs, who are non-suited by both the
courts below are the appellants.
2. The suit was one for injunction. According
to the plaintiffs, the property belongs to the third
plaintiff, who obtained it as per a purchase certificate
issued from the Land Tribunal concerned. Out of the
property she received as per the purchase certificate,
she sold 65 cents shown as item No.1 in the plaint to
plaintiffs 1 and 2 in the year 1974 and the balance
portion is still in her possession. Defendants have no
manner of right over the suit property. Some of the
children of the third plaintiff had earlier instituted a suit
for partition as O.S.71 of 1982. That was dismissed.
Appeal taken against the judgment and decree of the
lower appellate court was also dismissed. Inspite of the
dismissal of the earlier suit, raising the very same
S.A. 641/1997. 2
contentions, some other persons have come up to trespass
into the property. Therefore the plaintiffs are constrained to
approach the court.
3. Defendants 1 to 6 resisted the suit. According
to them, the property originally belonged to one
Kunhiraman. He died as a bachelor. Therefore his rights
devolved on his niece, the third defendant. According to
these defendants, the personal law of the parties is
Marumakkathayam law. Except the first defendant, others
claimed to be co-owners. They say that the assignments
made by the third plaintiff are not binding on them. Further,
they say that these defendants were not parties to the
earlier suit and the decision in that suit is not binding on
them. They say that they are also residing in the house
situate in the plaint schedule property and no relief can be
granted against them.
S.A. 641/1997. 3
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.W.1 and the documents marked as Exts.A1 to A10 from
the side of the plaintiffs. The defendants had D.W.1
examined and Exts.B1 to B3 marked.
5. The trial court on an appreciation of the
materials came to the conclusion that the parties follow
Marumakkathayam Law and if that be so defendants 2 to 6
are co-owners of the properties. Apart from that, it was also
found that the defendants are also in possession of the
property. Accordingly the suit was dismissed.
6. The plaintiffs carried the matter in appeal as
A.S. 27 of 1990. The appellate court concurred with the
finding of the trial court that the parties were governed by
Marumakkathayam law and the plaintiffs and defendants 2
to 6 are co-owners and accordingly dismissed the appeal.
7. The following questions of law have been raised
in the Memorandum of Second Appeal:
S.A. 641/1997. 4
“Whether in the facts and
circumstances of the case, the parties are
governed by the law of Marumakkathayam or they
are followers of Makkathayam law?
8. One must remember that this is a suit for
injunction simplicitor. The question of possession alone is
relevant. Learned counsel appearing for the appellants
points out that the judgment and decree in O.S.71 of 1982
as confirmed in A.S. 135 of 1985 operates as res judicata
and the suit ought to have been decreed. The contentions
raised by the defendants here were raised by the defendants
in the earlier suit and were found against. The defendants
cannot re-agitate the same issue and the courts below were
wrong in holding that the earlier decision is not binding on
the defendants in this case. It is contended that the
personal law of the parties is Mithakshara Law and that has
been omitted to be noticed by the courts below. The lower
courts have erred in holding that the parties are governed
by Marumakkathayam Law.
S.A. 641/1997. 5
9. There is no dispute regarding the fact that at
the relevant time Nani was the owner of the property. While
the plaintiffs would say that it was she who had acquired the
property, according to the defendants, she inherited it from
Kunhiraman, who was her uncle. The earlier suit was filed
by one of the children of third plaintiff herein claiming
partition of the property as O.S.71 of 1982. In that suit the
present defendants were not parties and it is evident that in
the present suit they are not claiming any rights through the
persons who were parties in the partition suit. They set up
independent rights.
10. It was unnecessary to go into the question
regarding personal law of the parties. As already noticed,
the suit was one for injunction simplicitor and all that the
court needs to look into was as to who is in possession of the
property. The trial court has found that except for the oral
evidence of P.W.1 there is nothing to show that the
defendants are trying to trespass into the property. It is also
found that some of the defendants are residing in the
S.A. 641/1997. 6
property and the trial court accepted the documents
produced by the defendants. The plaintiffs do not appear to
have a case that they are residing in the property. The
lower appellate court accepted the finding. It could thus be
seen that it could not be said that the defendants have
trespassed into the property or they are trying to trespass
into the property. Going by the plaintiffs’ evidence, it is also
evident that they are also residing in the hut. Viewed from
this angle, obviously the plaintiffs are not entitled to the
reliefs they have sought for.
11. However, it is pointed out by the learned
counsel for the appellants that other suits have been filed on
the basis of the finding in this suit that the parties are
governed by Marumakkathayam law and the finding of the
court below in this suit may prejudice the plaintiffs in the
other suits.
12. It has already been noticed that it wa
unnecessary to decide the personal law of the parties in this
suit and so also title to the property. Those questions do not
S.A. 641/1997. 7
arise for consideration at all. Having found that the
defendants are also in possession of the property, it is
unnecessary for the court below to consider the personal law
that is applicable to the parties.
In the result, while dismissing the appeal and
confirming the judgments and decrees of the courts below,
the question as to the personal law of the parties and title to
suit property are left open for decision in appropriate
proceedings. There will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.