IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 867 of 1997(C)
1. AVIRA JOSEPH
... Petitioner
Vs
1. VARGHESE MATHAI
... Respondent
For Petitioner :SRI.ROY CHACKO
For Respondent :SMT.ELIZABETH MATHAI IDICULLA
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. Nos. 867 of 1997 &
209 of 1998
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Dated this the 7th day of July, 2010.
JUDGMENT
Three suits, i.e. O.S.Nos. 261 and 724 of 1982
and O.S.193 of 1983 before the Munsiff’s Court,
Alappuzha were jointly tried and disposed of by a
common judgment. O.S. 261 of 1982 was filed by the
respondents herein while the other two suits were filed
by the appellant. The appellant’s suits were dismissed
and respondents’ suit was decreed. The appellant
preferred first appeals before the lower appellate court,
which confirmed the judgment and decree of the court
below.
2. O.S. 261 of 1982 is treated as the leading
case and the parties and facts are referred to as they are
available in the said suit.
3. The facts are as follows: All the three suits
were for permanent prohibitory injunction. The plaint
S.A.867/97 & 209/98. 2
schedule property in O.S. 261 of 1992 has an extent of about
four acres and is a garden land and paddy field. They are in
Sy. Nos. 68/12A and 12B, i.e. 1.27 acres comprised in Sy.
No.68/12A and 2.73 acres comprised in Sy. No.68/12B. The
properties were initially owned by the predecessors-in-
interest of defendants 2 to 5 in O.S. 261 of 1982. The
properties were brought to sale in court auction in execution
of the decree in O.S. 171 of 1094 M.E. of Munsiff’s court,
Alappuzha. One Neelakanta Iyyer Subramaniya Iyyer bid the
property and the sale was confirmed in his favour and
possession was taken. The plaintiff and their predecessor in
interest took the property on lease from Neelakanta Iyyer
Subramniya Iyyer. Ever since then, they are in actual
possession and enjoyment of the property. They have
obtained purchase certificates also. In the purchase
certificates, some of the defendants were made parties.
Even though they raised strong objection, that was rejected
and purchase certificate was issued. Later, the defendants
trespassed into the property and put up a shed therein.
S.A.867/97 & 209/98. 3
They have no manner of right over the suit property. So
suits for prohibitory injunction and mandatory injunction
were laid.
4. Defendants 2, 3 and 4 contested the suit.
According to them, their predecessors in interest were the
owners of the property. Even though the property was
brought to sale and sold, no delivery was taken by the
auction purchaser. The property continued to be in the
possession and enjoyment of the defendants and their
predecessors in interest. The order in O.A. is not binding
on them. These defendants are not parties to the O.A. The
second defendant has been in possession of the property for
a long time and has been residing there for more than 70
years. Neither the plaintiff nor the first defendant have
ever obtained possession of the suit property. They
therefore prayed for a dismissal of the suit.
5. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws. 1 to 3 and the documents marked as Exts. A1 to A14.
S.A.867/97 & 209/98. 4
The contesting defendants had D.Ws. 1 to 3 examined and
Exts.B1 to B9 marked. Exts. C1 to C3 are the commission
report and plan, and C.Ws. 1 and 2 were examined as court
witnesses.
6. The trial court found that as per Ext.A1
judgment dated 27.1.1960 Neelakanta Iyyer Subramania
Iyyer had obtained delivery and possession of the property
and thereafter the defendants have never been in
possession of the property. On the basis of the above
findings, O.S. 261 of 1982 was decreed and the other two
suits were dismissed. The trial court after consideration of
the materials before it came to the following findings:
“In the result, O.S. 261 of 1982 is
decreed restraining the defendants two to four
from trespassing into the plaint schedule property
and from taking usufructs therefrom. The
Receiver appointed in O.S. 193 of 1983 is directed
to surrender the possession of the property
concerned to the plaintiffs in O.S. 261 of 1982
after complying with all the legal formalities. The
suits O.S. 724 of 1982 and O.S. 193 of 1983 are
S.A.867/97 & 209/98. 5
dismissed. The parties in all the suits are directed
to bear their respective costs.”
7. The defendants, who suffered a decree in
O.S.261 of 1982, and had their suits dismissed carried the
matter in appeals, they did not succeed. Hence these
Second Appeals.
8. The following questions of law are seen raised
in the second appeals:
“i) Whether in view of the finding that O.S.
261/82 is barred by res judicata were the courts
below justified in granting a decree in O.S. 261/82
and consequently dismissing O.S. 724/82 and
193/83.
ii) Whether Ext.A7 delivery Kaychit
conclusively established that the entire plaint
schedule property was delivered to the
predecessor-in-interest of the plaintiffs in O.S.
261/82 and based on that document whether the
courts below were right in dismissing O.S. 724/82
and O.S. 193/83.
iii) Whether the courts below were justified in
ignoring Ext.B8 judgment of the Appellate
S.A.867/97 & 209/98. 6
Authority (L.R.) wherein the patta issued to the
plaintiffs in O.S. 261/82 was cancelled.
iv) Whether there was justification to enter
finding that the plaintiff in O.S. 724/82 failed to
prove possession of the plaint schedule property.”
9. Learned counsel appearing for the appellants in
these appeals raised three points for consideration. They
are 1) pleadings in the earlier suit evidenced by Ext.A1
judgment were not produced in the present suits and
therefore the plea of res judicata ought not to have been
entertained, 2) to the auction purchaser in execution
proceedings the entire extent of property involved in these
proceedings were not delivered, and 3) purchase
certificates have been set aside, so that the plaintiff in O.S.
261 of 1982 cannot rely on them.
10. Learned counsel appearing for the contesting
respondents on the other hand pointed out that there is no
merit in any of the above contentions. Learned counsel
pointed out that there was no contention before the courts
below that Ext.A1 judgment cannot be received in evidence
S.A.867/97 & 209/98. 7
and the plea of res judicata cannot be raised for want of
production of pleadings in the earlier suit. The said
contention is taken up for the first time before this court and
it is pointed out that the same may not be entertained.
Equally unsustainable is the contention based on non-
delivery of the entire extent as claimed by the appellant. It
has been categorically found in the earlier suit that the
entire property sold as per the court auction has been
delivered. Even assuming that the order granting purchase
certificates have been set aside, that does not help the
appellant at all.
11. It cannot be disputed that there was an earlier
suit between the parties, i.e. O.S. 98 of 1955, in which the
same issues were involved. The said suit went against the
appellant herein. It is contended that since the pleadings in
the earlier case have not been produced, the plea of res
judicata ought not to have been considered by the courts
below. In support of his contention, learned counsel
appearing for the appellant relied on the decision reported in
S.A.867/97 & 209/98. 8
Ramachandra Dagdu Sonavane v. Vithu Hira Mahar
((2009)10 SCC 273). It is also contended that the earlier suit
was one for injunction alone and in the present suit the issue
of title is involved. Even though it is said that in the earlier
suit title was considered, that was only incidental and that
title was not substantially or directly in issue in the earlier
suit. On that ground also, the plea of res judicata cannot
succeed. Merely because the issue of title has been
incidentally gone into, will not enable the respondents
herein to take the aid of previous judgment in which
possession was the sole issue for consideration.
12. It is true that in the decision reported in
Ramachandra Dagdu Sonavane v. Vithu Hira Mahar
(2009(10) SCC 273) it was held as follows:
“To the same effect is the judgment of
this Court in Sulochana Amma v. Narayanan Nair
in which it has been held that the issue between
the same parties or persons under whom they
claim title or litigating under the same title, it
operates as a res judicata. A plea decided even in
S.A.867/97 & 209/98. 9
a suit for injunction touching the title between the
same parties would operate as res judicata.
The learned Senior Counsel Shri
Naphade by placing reliance on the observation
made by this Court in Syed Mohd. Salie Labbai v.
Mohd. Hajifa that the best method to decide the
question of res judicata is first to determine the
case of parties as put forward in their respective
pleadings of their previous suits and then to find
out as to what had been decided by the
judgments which operate as res judicata. It is the
contention of the learned Senior Counsel that the
pleadings of the suit of 1953 were not available to
the civil court while deciding the second suit of
1979 and, therefore, the High Court was justified
in holding that the finding of the civil court in the
second suit of 1979 and the appellate court
against that order regarding res judicata cannot
be upheld.
In Syed Mohd. case, this Court has
stated that before a plea of res judicata can be
given effect to the four conditions are required to
be proved. They are, that the litigating parties
must be the same; that the subject-matter of the
suit also must be identical; that the matter must
S.A.867/97 & 209/98. 10
be finally decided between the parties; and that
the suit must be decided by a court of competent
jurisdiction. This Court while analysing those
conditions as matter of fact found that the parties
had not even filed the pleading of the suits
instituted by them. In that factual scenario, this
Court had to observe that the pleadings cannot be
proved merely by recitals of the allegations
mentioned in the judgment.
It is true that if an earlier judgment has
to operate as res judicata in the subsequent
proceedings, then all the necessary facts including
pleadings of the earlier litigation must be placed
on record in the subsequent proceedings. In the
judgment and decree in O.S. 2353 of 1979, the
trial Jude in extenso has referred to the pleadings
of the parties in the earlier suit with reference to
the copy of the judgment and decree passed in
O.S. No.104 of 1953 which was produced by the
appellants along with the other documents and it
is only thereafter that the issue regarding
adoption of Vithu was one of the issues framed in
the 1953 suit and the court after referring to the
pleadings of both the parties and the evidence
adduced has specifically answered the issue by
S.A.867/97 & 209/98. 11
holding that Vithu has failed to prove that he is an
adopted son of the deceased watandar.
Therefore, we cannot accept the contention of
learned Senior Counsel Sri. Shekhar Naphade.”
So also in the decision reported in Sreedharan v. Uniiatha
(1985 K.L.T. 181) it was held as follows:
“The word “substantially” means “of
importance and value” and a matter is
substantially in issue if it is of importance and
value for the decision of the case. To illustrate, an
unnecessary or irrelevant issue, the decision of
which either way will not affect the decision of
suit, cannot be of any importance or value for the
decision of the suit and is, therefore, not
substantially in issue. Courts have laid down that
to constitute a matter directly and substantially in
issue, it is not necessary that a distinct issue
should have been raised upon it; it is sufficient if
the matter was in issue in substance. The point
whether a matter was directly and substantially in
issue in the former suit is to be decided with
reference to the fact, and circumstances of each
particular case. It is essentially a question of fact.
If the parties and the court considered the matter
S.A.867/97 & 209/98. 12
as if it formed a direct and principal issue, it must
be taken to have been directly and substantially in
issue. It is not possible to formulate any ground
rules to decide whether a previous decision
regarding title in a suit for injunction does not
operate as res judicata in a subsequent suit for
recovery of property on the strength of title. The
question essentially depends upon the fact
whether the issue as to title raised in the
subsequent suit was directly and substantially in
issue in the former suit and was the ground for the
ultimate decision, and this again depends upon
the circumstances of each case. Certainly if the
issue in regard to title was directly and
substantially in issue in the former suit, the finding
on it would operate as res judiata if the
determination of that issue constituted the
stereobate for the ultimate decision. But if it was
not in issue at all or was only collaterally and
incidentally in issue, it would not so operate.
Where for the purpose of deciding the suit for
injunction, the question of title has been
specifically considered and decided and that
formed the principal ground for the ultimate
decision, that decision will operate as res judicata
S.A.867/97 & 209/98. 13
between the parties. The fact that the former suit
could have been decided without reference to the
question of title may not be of any importance,
when in a given case the suit has been decided
solely on the basis of title to the property. In this
context it has to be noted that the Supreme Court
has held that: “A final decision in any matter at
issue between the parties is based by a court on
its decisions on more than one point-each of which
by itself would be sufficient for the ultimate
decision-the decision on each of these points
would operate as res judicata between the
parties.” A finding which is the real ground of the
ultimate decision will operate as res judicata even
though there may have been other issues on
which the case might equally well have been
decided. In other words, where the judgment is
based on the findings on two issues one of which
by itself is sufficient to sustain the judgment, the
decision on both the issues will be res judicata
inasmuch as the decision of the suit in such cases
must be taken to have rested on the findings on
both the issues, each being an additional of
supplemental ground to the other for the disposal
of the suit.
S.A.867/97 & 209/98. 14
In sum, what I understand is that the
only determinations which are necessary to the
decision-which are fundamental to it and without
which it cannot stand-will operate as res judicata.
Other determinations, without which it would still
be possible for the decision to stand, however
definite be the language in which they are
expressed, cannot support a plea of res judicata
between the parties between whom those
determinations were pronounced. I quote an
ancient authority-a statement of the principle by
Coleridge J.
“The judgment concludes, not merely as
to the point actually decided, but as to a matter
which it was necessary to decide, and which was
actually decided, as the ground work of the
decision itself, though not then directly the point
at issue.”
R.V. Harlington, Middle Quarter
(inhabitants) (1855) 4E & B 780 at pages 794-95)
It is exceedingly difficult to distinguish the matters
fundamental or cardinal to the prior decision,
necessarily involved in it as its legal justification or
foundation, from matters which even though
actually raised and decided as being in the
S.A.867/97 & 209/98. 15
circumstances of the case the determining
considerations; yet are not in point of law the
essential foundation or groundwork of the
judgment. How to make this essential distinction-I
should say in order to delineate this essential
distinction, one has always to enquire with
unrelenting severity-is the determination of the
issue upon which it is sought to found a plea of res
judicata, so fundamental to the substantive
ultimate decision, that the latter cannot stand
without the former. Nothing short of this will do.
It is well settled that a mere step in the reasoning
of the ultimate decision is insufficient. What is
required is no less than the determination of law,
or fact or both fundamental to the substantive
decision.”
So also in the decision reported in Sajjadanshin Sayed v.
Musa Dadabhai Ummer ((2000) 3 SCC 350), it was held as
follows:
“The words “collaterally or incidentally
in issue” have come up for interpretation in
several common law jurisdictions in the context of
the principle of res judicata. While the principle
has been accepted that matters collaterally or
S.A.867/97 & 209/98. 16
incidentally in issue are not ordinarily res judicata,
it has however been accepted that there are
exceptions to his rule. The English, American,
Australian and Indian courts and jurists have
therefore proceeded to lay down certain tests to
find out if even an earlier finding on such an issue
an be res judicata in a later proceeding. There
appears to be a common thread in the tests laid
down in all these countries. We shall, therefore,
refer to these developments.”
13. It is well settled that in a suit for injunction the
question of title does not arise for consideration and the
sole issue to be decided is to who is in possession of the
property as on the date of the suit. But, if the issue of
possession was so interlinked with title, so that an issue
regarding title had to be raised and had to be considered
and it was in fact so done, then it assumes a different
character. In such case, if there was an issue regarding title
and the parties had gone for trial fully conscious of the
various issues raised in the suit, then after having invited
decision against them with regard to title, in the subsequent
S.A.867/97 & 209/98. 17
suit they cannot be heard to say that the earlier decision is
not res judicata. If on the other hand an issue regarding title
is only collateral or incidental to the main issue, and then
even if it is decided in the earlier suit, the finding therein
would not ordinarily operate as res judicata. In the case on
hand, a perusal of Ext.A1 will clearly show that the issue
regarding title was agitated, the parties had gone to trial
fully conscious of that fact, evidence was adduced and it was
found that the appellants had no title to the suit property.
True, as laid down in the decision reported in Madhavi
Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi
Pillai ((2000) 6 SCC 301) mere finding on an incidental
question may not as such constitute res judicata. But if on
the other hand as already stated, the issue of possession
and title are so interlinked, and it becomes necessary to
consider the question of title, then if decided that will be
binding on the parties. If on the other hand the decision on
the issue of title was only incidental or collateral, neither
side can take aid of it in a subsequent proceedings. Both
S.A.867/97 & 209/98. 18
the courts below have found that in the earlier suit the issue
regarding title was relevant and in fact an issue had been
raised regarding title. In the light of the above facts, the
contention of the learned counsel for the appellant that the
issue of title was not decided in the earlier suit cannot be
countenanced.
14. It is not seen from the judgment of the lower
court that the contention based on want of production of
pleadings in the earlier case for considering the question of
res judicata was raised before the court below at all. It is
true that in the decision reported in Ramachandra Dagdu
Sonavane ‘s case, it was held that it is necessary to
produce the pleadings in the earlier case to put forward a
successful plea of res judicata. This is because the court
trying the subsequent suit has to ascertain whether on
pleadings and materials before the court in the earlier suit,
the issue that is stated to be res judiata did in fact arise for
consideration. In case where there is a doubt regarding the
actual issue involved in the previous suit, it may not be
S.A.867/97 & 209/98. 19
strictly necessary to scrutinize the pleadings in the said suit.
But when it is manifest from the judgment itself that an
issue has been raised in that regard, there will be no
justification for insisting that the pleadings in the earlier suit
must be produced. True, res judicata is a rule of evidence.
But there is nothing which prevents the courts from looking
into the earlier judgment, to see what were the issues
involved in that suit and what are the decisions on those
issues. Viewed from that angle, it could be seen that in the
earlier case, i.e. O.S. 98 of 1955 the court did raise a
question regarding title and found against the appellants
herein. Therefore, the contention based on failure of
production of pleadings and also that the issue of title was
only incidental and collateral in the previous suit cannot be
accepted.
15. Equally unsustainable is the contention that
after the auction sale the entire property covered by the sale
was not delivered. The plaintiff in O.S. 261 of 1982 has
produced a delivery kychit dated 5.1.1101 M.E. It clearly
S.A.867/97 & 209/98. 20
shows that the entire property had been delivered over to
the auction purchaser. In the light of this document, it is for
the defendants or in other words the appellant herein to
prove that the kychit does not reflect the true state of affairs
and the properties were not infact delivered to the auction
purchaser. In fact in the previous proceedings, this issue
was also considered and the courts, after scrutinizing the
materials before it came to the conclusion that delivery was
given and the auction purchaser had obtained possession of
the property. Therefore, even assuming that the order
granting purchase certificates have been set aside, it may
not be of much use to the appellant herein.
16. The claim that the appellant was residing in
the property was also found against by both the courts
below. No independent evaluation of evidence is necessary
on this matter.
17. Apart from all the above, there is one fatal
aspect in this case. One may recall that there are three
suits which were jointly tried. There were three appeals
S.A.867/97 & 209/98. 21
also from the decrees passed by the trial court. The
decisions in all the suits and the appeals went against the
appellant. For reasons best known to the appellant, the
appellant chose not to file appeal against the judgment and
decree in O.S. 193 of 1983, which was confirmed in appeal
as A.S. 57 of 1994. One cannot but, note that in all the three
suits the issues involved were common and the decision on
an issue in one suit will have considerable impact on the
other suit also. That be the position, the present appeals by
the appellant are barred by res judicata.
18. Faced with the above situation, learned
counsel appearing for the appellant pointed out that in O.S.
193 of 1983 the extent of property involved was only 2.49
acres, whereas the total extent of property involved in all
the suits are four acres. Therefore, the mere fact that he
has not filed an appeal in O.S. 193 of 1983 is not a ground to
non-suit him.
19. The argument has no legal basis at all. The
extent of property involved in each of the suits is irrelevant.
S.A.867/97 & 209/98. 22
What is significant is the nature of the issues taken up for
consideration by the court. It cannot be disputed by the
appellant that in all the three suits the issues that arose for
consideration were identical. It cannot also be disputed that
decision in one suit will have a considerable impact on the
decision on the other suits also. In such a situation, an
appeal from the judgment and decree passed by the lower
appellate court in O.S. 193 of 1983 ought to have been filed
by the appellant.
20. In the decision reported in Ram Prakash v.
Charan Kaur ((1997) 9 SCC 543) it was held that when
there are two connected suits, one by the plaintiff and the
other by the defendant claiming damages against each
other, and they are disposed of by a common judgment,
appeal will have to be preferred from both of them. Appeal
against the decree in one of the suits alone will not be
sufficient. The decision in the other suit will operate as res
judicata. In the decision reported in Premier Tyres Limited
v. The Kerala State Road Transport Corporation (AIR
S.A.867/97 & 209/98. 23
1993 SC 1202) also the same issue was considered. In the
above decision there were three suits involved. It so
happened that only two appeals were filed and the apex
court held as follows:
“Although none of these decisions were
concerned with a situation where no appeal was
filed against the decision in connected suit but it
appears that where an appeal arising out of
connected suits is dismissed on merits, the other
cannot be heard, and has to be dismissed. The
question is what happens where no appeal is filed,
as in this case from the decree in connected suit.
Effect of non-filing of appeal against a judgment or
decree is that it become final. This finality can be
taken away only in accordance with law. Same
consequences follows when a judgment or decree
in a connected suit is not appealed from.”
The matter was elaborately considered in the decision
reported in Janardhanan Pillai v. Kochunarayani Amma
(1976 KLT 279), wherein it was held as follows:
“Stated in simple form the principle of
the rule of res judicata is that when once there
S.A.867/97 & 209/98. 24
has been a decision between the parties to a suit
this rule will preclude the trial of a fresh suit for
the same relief between the same parties. So is
the case with a defendant setting up the same
plea in a subsequent suit between the same
parties. The suit or issue must have been heard
and finally decided in order to constitute res
judicata. “Former” in Explanation I denotes a suit
which is decided prior to the suit in question
irrespective of whether it was instituted earlier or
later. If there are two suits in which the matter
directly and substantially in issue are the same
that the earlier decision in one of the suits bars a
fresh decision in the other suit is evident from the
provisions in S.11 of the CPC. In cases where two
or more suits between the same parties relating
substantially to the same matter are decided and
only one of them is challenged by way of appeal,
we fail to see how it can be said that the decisions
are simultaneous and hence there can be no bar
of res judicata. If the party takes up in appeal
only one of the decisions, the others become final.
The question of res judicata would arises for
determination only when the appeal against the
connected decision is taken up for consideration.
S.A.867/97 & 209/98. 25
That will necessarily be at a subsequent point of
time. At that moment there would be earlier
decisions which have become final. The question
whether the decision from which appeal has been
filed and the decisions which have become final
were rendered simultaneously would then be
really irrelevant. Within the meaning of
explanation I of S.11 of the C.P.C. the decision
which becomes final by being not appealed
against becomes an earlier decision in a matter
directly and substantially in issue in the former
suit and operates as res judicata. This is
notwithstanding the very serious consequence
that the party who has filed appeal against only
one of the two decrees may have to face. It is not
as if his right of appeal becomes unavailable to
him because of the bar of res judicata. He has the
right to have his appeal taken up and considered,
but he cannot get relief to the extent the question
in issue which calls for decision in the appeal
cannot be considered on the merits by reason of
the bar of res judiata. If the party to the decree
would be bound by the decree if he does not
challenge the decree he must face the
consequences of his failure to appeal against it,
S.A.867/97 & 209/98. 26
such consequences being the finality thereof.
Such finality would debar a decision afresh on the
question even if it be in an appeal against a
simultaneous decision. We do not see justification
to import any rule of expediency to the context.
There is no logic which compels us to adopt the
view that an earlier decision in a former suit may
not operate as res judicata in the vent that
decision was reached simultaneously with the
decision in the suit from which the appeal is taken.
That would be against the plain provision in S.11
of the CPC. The question whether the plea of res
judicata is available is to be decided with
reference to the time the matter comes up for
consideration and if by that time there is an earlier
decision by a competent court between the same
parties which has become final and the question is
directly and substantially the same such earlier
decision would operate as res judicata barring a
fresh decision by the appellate court.”
21. In fact this sole ground is sufficient to dismiss
the two appeals filed by the defendant in the suits and it
would have been unnecessary to consider the appeal on
merits.
S.A.867/97 & 209/98. 27
Whatever that be, it can thus be seen that the
appeals are without merits and that they are liable to be
dismissed. I do so confirming the judgments and decrees of
the courts below. There will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.
