IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 818 of 1994(E)
1. DEVADAS GLADIS REENI VAYALA
... Petitioner
Vs
1. M.A.SAMUEL
... Respondent
For Petitioner :SRI.G.UNNIKRISHNAN
For Respondent :SRI.K.HARILAL
The Hon'ble MR. Justice P.BHAVADASAN
Dated :22/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 818 of 1994
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Dated this the 22nd day of July, 2010.
JUDGMENT
The plaintiff in O.S.29 of 1980 before the
Munsiff’s Court, Punalur, who had his suit dismissed by
both the courts below, are the appellants.
2. The plaintiffs are the children of the 4th and
5th defendants. First and second defendants are brothers
and the third defendant is the son of the first defendant.
According to the plaintiffs, the plaint schedule properties,
which consist of two items were acquired in their name
while they were minors as per Exts.A1 and A2 dated
21.12.1964 and 29.12.1964 respectively. The funds were
supplied by their grand father. Even since the
acquisition, the fourth defendant, the father of the
plaintiffs, had been managing the properties on behalf of
the minor plaintiffs. They were in possession and
enjoyment of the property. According to the plaintiffs, a
S.A.818/1994. 2
dispute arose between defendants 1 and 2 on the one hand
and the employee, defendant No.4, on the other hand.
Defendnts 1 to 3 trespassed into the property in 1974 and
reduced it into their possession. They began to take income
from the property. They destroyed the boundaries of the
properties. As stated earlier, the fourth defendant was the
employee of defendants 1 to 3. There were some major
disputes between them and ultimately the fourth defendant
was awarded a compensation of Rs.18,000/-. Thereafter
defendants 4 and 5 with their children shifted their residence
from the estate bunglow. That enabled defendants 1 to 3 to
occupy the property completely. The fourth defendant
therefore instituted O.S. 195 of 1974 on behalf of the minors
for necessary reliefs. According to the plaintiffs, the fourth
and fifth defendants did not conduct the suit properly and
were negligent in that regard. The result was that the suit
happened to be dismissed. The fourth and fifth defendants
did not produce the necessary documents and did not take
the necessary steps to prosecute the suit properly. Since
S.A.818/1994. 3
they were negligent and had misconducted themselves, it is
alleged that the decree in O.S. 195 of 1974 is not binding on
the plaintiffs. Pointing out that the defendants 1 to 3 have
no manner of right over the suit property, and they are in
illegal possession, the suit was laid.
3. Defendants 1 to 3 resisted the suit. They
pointed out that the suit is a fraudulent and vexatious one.
After having met defeat in the earlier adventure, which was
hotly contested and fought till the end, an ingenious method
has now been devised to re-agitate the issue. They pointed
out that the description of the plaint schedule properties is
incorrect and the plaintiffs have no right over the property.
The properties scheduled to the plaint is a portion of the
YMCA Estate, which belonged to the family of defendants 1
to 3. The suit is barred by the principle of res judicata.
Even if the plaintiffs had any manner of right over the suit
property, the same is lost by adverse possession and
limitation. Based on these contentions, they prayed for a
dismissal of the suit.
S.A.818/1994. 4
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws. 1 to 9 and the documents marked as Exts.A1 to A68
from the side of the plaintiffs. The defendants had D.Ws. 1
to 3 examined and Exts. B1 to B55 marked. Exts. C1 to C6
are the various reports and plans filed by the Commissioner.
5. On going through the materials, the trial court
found that the claim that the earlier litigation was mis-
conducted and the fourth defendant was negligent is not
correct and all necessary steps had been taken in the earlier
litigation. It is found that the present suit is barred by the
principle of res judicata since the same issues as were
settled in the earlier suit are sought to be re-agitated in the
present suit. The trial court went on further to ascertain
whether the plaintiffs have proved their case on facts. On
an elaborate consideration of the evidence, the trial court
found that the fate of their case is the same in the earlier
case and that the plaintiffs have miserably failed to get the
suit properties identified and accordingly dismissed the suit.
S.A.818/1994. 5
6. The plaintiffs carried the matter in appeal as
A.S.74 of 1992 before the District Court, Kollam. The lower
appellate court reconsidered the issues agitated in the suit
and found that none of the claims put forward by the
plaintiffs are sustainable. The said court too found that the
earlier litigation was keenly contested and there were
nothing to show that the decree passed in the earlier suit,
namely, O.S. 195 of 1974, which was laid on behalf of the
plaintiffs herein was vitiated due to any reason. Like the
trial court, the lower appellate court too felt that in the
fitness of things it will be only proper to consider the merits
also of the case and went on to do so. The result was that
the lower appellate court too found that the conclusions
reached by the trial court are fully justified. Faced with this
concurrent findings against them, the plaintiffs have now
come up before this court.
7. During the pendency of the appeal, the first
respondent died and his legal heirs have been brought on
the party array.
S.A.818/1994. 6
8. The following substantial questions of law have
been raised in this Second Appeal:
“i) Is not the finding that the decree in
O.S. 195 of 1974 is not liable to be set aside on
the ground of misconduct and gross negligence of
the next friend in the matter of prosecuting the
case contrary to law?
ii) Is not the finding that this suit is
barred by res judicata by the judgments and the
decree in O.S. 195 of 1974 vitiated by error of
law?
iii) Is the finding on the issue of
plaintiffs title to and possession of the plaint
schedule property sustainable in law. Is not the
said finding vitiated by the omission to apply the
correct principles of law relating to interpretation
of deeds and by misreading of the evidence?”
9. Learned counsel appearing for the appellants
vehemently contended that the plaintiffs are entitled to
avoid the decree in O.S. 195 of 1974 as confirmed in A.S. 45
of 1978 since the suit was not properly conducted by their
guardian, namely, the fourth defendant in the present suit.
S.A.818/1994. 7
The negligence and mis-conduct on the part of the guardian
jeopardized the interests of the minors. According to
learned counsel, in the decision reported in Narayanan
Nambooripad v. Gopalan Nair (1960 KLT 546) it has
been held that once it is found that there has been
misconduct on the part of the guardian, the decree can be
avoided. Learned counsel also went on to contend that the
courts below have not properly appreciated the evidence on
record and have been carried away by certain observations
in the earlier suit and that has resulted in miscarriage of
justice. A proper analysis of the documents will clearly show
that they have succeeded in establishing the title to the
suit property and they are entitled to the reliefs prayed for.
Learned counsel characterized the decision of the courts
below as based on conjunctures and surmises. Both the
courts below have grievously erred in finding that the
identity of the property has not been established. If the
courts below have perused the various documents of title
produced by the plaintiffs, such an error would not have
S.A.818/1994. 8
occurred. Finally, learned counsel contended that viewed
from any angle, the judgments and decrees of the courts
below are clearly unsustainable.
10. Per contra, learned counsel appearing for the
contesting respondents pointed out that there is absolutely
no merit in the contentions raised by the appellants. There
is absolutely no evidence at all to show that there was any
misconduct on the part of the guardian, which had
jeopardized the rights of minors and it enables them to avoid
the decree in the earlier suit. Learned counsel drew the
attention of this court to Exts.B32 and 34, which are the
judgments in the earlier suit and appeal and pointed out that
a reading of those judgments will show that all efforts have
been made by the guardian to establish the rights of the
minors. Learned counsel also pointed out that details of
negligence or misconduct are not available from the
pleadings. Misconduct involves a mental element or wilful
act, which obliges a person to act in a particular manner.
Learned counsel pointed out that there is no case for the
S.A.818/1994. 9
plaintiffs in the present suit that their guardian, the fourth
defendant, had colluded with the defendants in the earlier
suit, so as to defeat the claims of the present plaintiffs.
Except for producing some more documents, the plaintiffs
have done nothing more in the present suit also. In this suit
also, the courts below have considered the evidence in
detail and have come to the conclusion that the fate of this
case is no better than the earlier case. In the present suit
also, like in the earlier suit, the plaintiffs were unable to
establish the title to the property and so also the identity of
the property. A reading of the commission report in this
case is sufficient to show that the claims made by the
plaintiffs are false and hollow. A perusal of the documents
produced also shows it is really the fourth defendant who
was behind the whole proceedings and he even now claims
the property as his own.
11. After hearing both sides and after going
through the records and the evidence in the case, this court
is constrained to observe that the suit is a typical instance
S.A.818/1994. 10
of gross abuse of process of court and the suit is
misconstrued and vexatious. The reasons follow.
12. At the outset itself, one aspect may be
noticed. In the courts below, the plaintiffs seem to have
placed reliance on Order XXXII Rule 3A of Code of Civil
Procedure to avoid the earlier decree. The said provision
reads as follows:
“3-A. Decree against minor not to be
set aside unless prejudice has been caused
to his interests.- (1) No decree passed against
minor shall be set aside merely on the ground that
the next friend or guardian for the suit of the
minor had an interest in the subject matter of the
suit adverse to that of the minor, but the fact that
by reason of such adverse interest of the next
friend or guardian for the suit, prejudice has been
caused to the interests of the minor, shall be
ground for setting aside the decree.
(2) Nothing in this rule shall preclude the
minor from obtaining any relief available under
any law by reason of the misconduct or gross
negligence on the part of the next friend or
S.A.818/1994. 11
guardian for the suit resulting in prejudice to the
interest of the minor.”
It is interesting to note that on going through the judgment
of the court below it can be seen that before the courts
below the effort taken by the plaintiffs was to show that
their guardian had been negligent in the conduct of the
earlier suit and therefore they had suffered. Surprisingly
enough, before this court that line of argument is not
pursued and the plea changed to one of misconduct.
Therefore, one can see that a totally different ground is
taken before this court to avoid the earlier decree.
13. A reading of the provision narrated above will
show that the two grounds on which the decree can be
avoided are ‘negligence’ or ‘misconduct’ on the part of the
guardian. There is a distinction between ‘negligence’ and
‘misconduct’. ‘ Gross Negligence’ is omission to do
something or doing something which he is not supposed to
do. ‘Misconduct’ on the other hand involves a slight element
S.A.818/1994. 12
of intention to do something wrong. The word ‘misconduct’
takes its colour from its context. In Black’s Law Dictionary,
‘misconduct’ is defined as follows:
“Misconduct. A transgression of some
established and definite rule of action, a forbidden
act, a dereliction from duty, unlawful behavior,
willful in character, improper or wrong behavior,
its synonyms are mis-demeanor, misdeed,
misbehaviour, delinquency, propriety,
mismanagement, offense, but not negligence or
carelessness. Term “misconduct” when applied to
act of attorney, implies dishonest act or attempt
to persuade court or jury by use of deceptive or
reprehensible methods. People v. Sigal, 249
C.A.2d 299, 57 Cal.Rptr. 541, 549. Misconduct,
which renders discharged employee ineligible for
unemployment compensation, occurs when
conduct of employee evinces willful or wanton
disregard of employer’s interest, as in deliberate
violations, or disregard of standards of behavior
which employer has right to expect of his
employees, or in carelessness or negligence of
such degree or recurrence as to manifest wrongful
intent or evil design.”
S.A.818/1994. 13
14. As already noticed, before this court
negligence has given way to misconduct. What is the
misconduct attributed to the fourth defendant. Misconduct
is that the fourth defendant did not take adequate steps to
produce the necessary documents to protect the interests of
the minors. Since negligence was the weapon used before
the courts below, they considered the issues from that
angle. On hearing counsel for the appellants, the facts
relied on in support of negligence and misconduct are one
and the same. That itself shows the hollowness of the claim.
15. It can be seen that both the courts below have
considered all the aspects of the case in considerable detail
and have considered each of the issues raised before the
courts below.
16. One may now refer to the plaint to ascertain
the pleadings regarding misconduct. In paragraph 8, it is
mentioned as follows:
“…….
S.A.818/1994. 14
1-0
2-0 3 -0
.”
(The guardian has not conducted the case properly and he
has been very careless with the result that the case was
decided against the plaintiffs and that after the preliminary
report, defendants 1, 2 and 3 have removed survey stones.)
In paragraph 9, it is stated as follows:
“1 3
4-0 5-0
. ”
(Defendants 1 to 3 had influenced the commissioner and
obtained an incorrect report and the plan prepared and the
fourth defendant, who was the guardian of the plaintiffs
S.A.818/1994. 15
failed to take necessary steps to have the original plan and
survey records brought to court and to produce necessary
evidence and his gross negligence resulted in the case going
against the minors.)
17. It is further stated that the fourth defendant
did not take steps to have the property properly identified.
In paragraph 11 it is stated that frightened of defendants 1
to 3 the fourth defendant and fifth defendant could not come
to the place and due to gross negligence and fraud the
decision happened to go against the plaintiffs. Except the
above bald statements, no other particulars are given in the
plaint. One must at once notice that no oblique motive is
attributed to defendants 4 and 5. There is no allegation that
they had acted in that manner with the intention to cause
loss to the plaintiffs. It can be easily seen that the
allegations are vague and do not contain necessary
particulars. It is well settled that in cases where vitiating
circumstances are pleaded, details ought to be given. That
has not been done in the present case. So also the plaintiffs
S.A.818/1994. 16
have no case that the fourth defendant had any interest
adverse to their’s when he represented them in the earlier
litigation.
18. One has to notice that even after all the
above, though the earlier defects are said to have been
cured in the present suit, the suit suffered the same fate as
the earlier one and the position of the plaintiffs is no better.
19. One may recall that both the courts below did
not accept the plea of negligence put forward by the
plaintiffs. Except for repeating what has been stated in the
plaint, P.W.1 says nothing more. She is unable to say what
are the things the fourth defendant ought to have done to
protect the interests of the minors. She has no explanation
as to why her father did not take necessary steps in the
previous suit. She has no case that her father had any
interest adverse to her or her sisters. P.W.8, who is the third
plaintiff does not say much about the vitiating elements. No
details whatsoever are available regarding the allegation of
negligence or misconduct. Going by the averments in the
S.A.818/1994. 17
plaint, it would appear that the plaintiffs are at logger heads
with the fourth defendant. But interestingly enough, the
evidence is otherwise. The courts below too found that
except for producing some more documents now, nothing
more has been established. The courts below have also
gone through the records and found that the earlier
proceedings was hotly contested and the matter was carried
in appeal by the fourth defendant. There is absolutely no
proof of any misconduct, much less gross negligence on the
part of fourth defendant in the conduct of the earlier suit.
20. If that be the position, the present suit is
barred by the principle of res judicata. There is no dispute
regarding the fact that the issues raised in the suit are the
same issues raised in the earlier suit and all the issues were
considered in the earlier proceedings also. In the earlier
proceedings, the courts have rendered decision on all the
issues on merits and if that be so, the plaintiffs cannot
re-agitate again.
S.A.818/1994. 18
21. The above finding is sufficient to dispose of
this appeal. Since elaborate arguments have been raised on
merits also, it is felt necessary to go into that aspect also.
22. One may at once refer to Ext.C6 commission
report. The commissioner says that the plots claimed by the
plaintiffs have been shown in pencil shade in the plan
produced by him. But the commissioner has noticed that
while locating the properties, it is seen that the boundaries
do not tally. The commissioner clearly states that at the
time when the survey was conducted in the year 1964, even
at that point of time the predecessors in interest of the
plaintiffs did not have possession of the property.
23. It is seen that after the commissioner has filed
his report, the plaintiffs had amended the schedule. The
commissioner has also located the plaint schedule property
after the amendment. He has observed that there is no road
either on the north or on the south as claimed by the
plaintiffs. The commissioner has also located the properties
as per the documents and as shown by the plaintiffs. The
S.A.818/1994. 19
two properties are in two different survey numbers and far
away from each other. The trial court as well as the
appellate court have perused the documents produced by
both sides and also considered the oral evidence adduced
by the parties.
24. Exts.A1 and A2 dated 21.12.1964 and
29.12.1964 respectively are seen to have been executed by
Gopala Pillai. From the records it is seen that he claims to
have obtained 12.24 acres as per Ext. A35 dated
17.12.1959 from one Krishna Pillai. That shows that he had
1.56 acres in Sy. No.808/1-64, 4.34 acres in Sy. No.808/1/65
and 6.34 acres in Sy. No.808/1-66. By Ext.A1 document 2.86
acres in Sy. No.808/1-64 has been conveyed and as per
Ext.A2 14 cents in Sy. No.188/1-65. It is interesting to note
that neither in Ext.A1 nor in Ext.A2 there is a recital that the
vendor had possession of the property and the possession
handed over to the vendees. The prior documents are
Exts.B33, 34 and 35. On a careful scrutiny, it can be seen
that the property shown as per Exts.A1 and A2 is the
S.A.818/1994. 20
property acquired by Ext.B35 by Gopala Pillai. It can also be
seen that going by the documents, the property covered by
Ext.A1 is lying on the western side of the total 12.24 acres
covered by Ext.B35. Going by the description it can be seen
that the properties covered by Exts.A1 and A2 are lying
separately.
25. The evidence of P.W.3, the Head Surveyor,
who prepared Ext.C1 plan will show that as per the survey
records Gopala Pillai had never been in possession of the
properties. The contesting defendants have produced field
plan as Ext.B10. There was an attempt from the side of the
plaintiffs to show that the recital in the document of title as
Ext.B2 is wrong. Even assuming that there is some error in
the description, one fails to understand how that would help
the plaintiffs.
26. The plaintiffs are suing on their title. It is trite
that in such state of affairs the entire burden is on the
plaintiffs to prove his title and any weakness in the defence
case cannot be of any help to him. Both the courts below
S.A.818/1994. 21
have found that going by the documents, evidence of the
Commissioner and the Survey Superintendent, it is not
possible to identify the properties covered by Exts.A1 and
A2. The survey numbers are also not discernible. On
perusing the records, the findings appear to be correct. It is
interesting to note that even after the amendment was
carried out to bring it in consonance with the report, still the
position remained the same.
27. P.W.3 is the Survey Superintendent. He has
deposed that he has located the properties comprised in Sy.
Nos. 20/A2, 30A/2, 38/A2, 29/76, which are the amended
survey numbers in the plaint. He had deposed that he had
scrutinized the documents produced by both sides. His
evidence shows that on scrutiny of the documents produced
by the plaintiffs and while locating the property as claimed
by the plaintiffs, only one of the boundaries tallied. He has
deposed that the road made mention of in Exts.A1 and A2 as
its northern boundary does not exist at all. He has also
S.A.818/1994. 22
deposed that the plaintiffs had purchased the property after
re-survey had been conducted.
28. P.W.4 is the Commissioner, who was deputed
to inspect the property in O.S. 195 of 1974. He would
depose that it was he who had submitted Ext.A30 report.
29. P.W.5 is the commissioner in the present suit.
He speaks about having prepared three plans and reports
and gives details about them. It is not necessary to narrate
his evidence in detail. However, he would depose that the
plaint was amended to bring it in consonance with his
report. Ext.C4 is the report and Ext.C5 is the mahazar filed
by him. He deposed that the schedule shown in the plaint
are different from the schedule shown in Exts.A1 and A2.
His evidence would show that it is not possible to locate the
properties as claimed by the plaintiffs. One fact is very clear
that after the amendment has been effected, the schedule
shown in the plaint does not tally with the schedule shown in
Exts.A1 and A2. The lower appellate court also noticed that
there is a difference in the description of the property
S.A.818/1994. 23
between the earlier suit and the present suit. On going
through the records, it appears to be correct. The assertion
of P.W.8, who is the third plaintiff is that both the properties
lie contiguously. But the evidence shows otherwise. A
perusal of Ext.C2 report would show that the properties in
Sy. No. 808/1/65 for a long time has been in the possession
of a stranger, who has nothing to do with the case. It is also
shown that going by the description of the properties in
Exts.A1 and A2, it is difficult to locate the properties.
30. A perusal of Ext.B6 partition deed shows that
the western boundary of Ramachandra Rao’s property is
YMCA Estate. That deed was executed in 1966. If that be
so, the story of the plaintiffs that defendants 1 to 3 have
trespassed into the property in 1974 falls to the ground.
31. It is significant to notice that the assigner of
the plaintiffs, namely, Gopala Pillai has executed as many
as ten documents in respect of the properties over which he
had no possession.
S.A.818/1994. 24
The net result is that the present suit also suffers
from the infirmities and defects as in the earlier suit and the
position of the plaintiffs is not better. Plaintiffs have not
established their claim to the suit property and the courts
below were fully justified in dismissing the suit. This appeal
is without merits and it is dismissed with costs to the
contesting respondents.
P. BHAVADASAN,
JUDGE
sb.