Avira Joseph vs Varghese Mathai on 7 July, 2010

Kerala High Court
Avira Joseph vs Varghese Mathai on 7 July, 2010




SA.No. 867 of 1997(C)

                      ...  Petitioner


                       ...       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.
              - - - - - - - - - - - - - - - - - - - - - - - - - - -
                       S.A. Nos. 867 of 1997 &
                               209 of 1998
             - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
              Dated this the 7th day of July, 2010.


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


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


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


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


So also in the decision reported in Sajjadanshin Sayed v.

Musa Dadabhai Ummer ((2000) 3 SCC 350), it was held as


“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


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


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


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.



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