IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 624 of 1994()
1. GOVINDH PILLAI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.G.PARAMESWARA PANICKER(SR)
For Respondent :SRI.V.N.ACHUTHA KURUP (SR.)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/11/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
S.A.No. 624 OF 1994
............................................
DATED THIS THE 26th DAY OF NOVEMBER, 2007
JUDGMENT
Plaintiffs 4 to 8 in O.S.75 of 1980 on the file of Munsiff
Court, Kottarakkara are the appellants. Defendants 1 to 7 and
legal heirs of 8th defendant are the respondents. Suit was filed
for declaration of leasehold right over 25 cents in Survey
No.124/26A of Kottarakkara Village. It was contended that first
plaintiff obtained the said property as per registered lease deed
361 of 1125 M.E and second defendant obtained 17 cents of land
on the north-western portion of the said property and he sold
that property to 3rd defendant and the predecessor in interest of
defendants 4 to 7 and the second defendant sold the right in
favour of third defendant and Renganatha Reddiar, the
predecessor in interest of defendants 4 to 7 and that right was
purchased by 8th defendant and defendants 9 to 13 are his
successors in interest. It was contended that second defendant
filed an application for measuring the property purchased by him
and the Taluk Surveyor prepared a plan showing portion of the
property of the plaintiff as part of the land purchased by second
defendant and plaintiff filed an appeal against the demarcation
SA 624/1994 2
of properties by the Surveyor which was decided against. Suit
was instituted seeking declaration of the leasehold right and to
set aside the orders in the appeal filed against that order and the
order in the revision. First plaintiff died during the pendency of
the suit and appellants were impleaded as his legal heirs.
Plaintiff had contended that no notice was served on him and
O.S.299 of 1966 was earlier filed and he was a party in that suit
and a plan was prepared by the Commissioner in that suit, the
dispute in the present suit was not an issue in the other suit and
therefore plaintiff is entitled to the decree sought for. Suit was
resisted by defendants contending that suit is barred by
resjudicata in view of the decision in O.S.299 of 1966. It was
also contended that the survey conducted was in confirmity with
the approved survey plan and plaintiffs are not entitled to
challenge the same. It was also contended that the entire 95
cents in that survey Number was located and a plan was
prepared in O.S.299 of 1976 and that plan was accepted by the
court and Ext.B10 judgment was passed and it is binding on the
plaintiff and therefore the suit is only to be dismissed. It was
also contended that the suit is barred by resjudicata in view of
Ext.B2 judgment in O.S.192 of 1975 filed by same plaintiff.
2. Learned Munsiff, on the evidence of PW1, Dws 1 to 3
and Exts.A1 to A12, B1 to B10, C1 to C3 and Ext.X1 and X2,
SA 624/1994 3
dismissed the suit holding that suit is barred by resjudicata in
view of Ext.B10 and B2 judgments the decision in O.S.299 of
1966 and O.S.192 of 1975. Plaintiff challenged the judgment
before Sub Court, Kottarakkara in A.S.434 of 1983. Learned
Sub Judge, on reappreciation of evidence, confirmed the findings
of learned Munsiff and dismissed the appeal. It is challenged in
the second appeal.
3. The second appeal was admitted formulating the
following the substantial questions of law.
1) Whether courts below properly applied the principles of
resjudicata.
2)Whether an issue between the parties arrayed on the same
side would operate as resjudicata, between co-defendants.
3)Whether findings of courts below that judgment in O.S.299 of
1966 and O.S.192 of 1975 would operate as resjudicata is
sustainable.
4. Learned counsel appearing for appellants and learned
counsel appearing for respondents were heard.
5. The original plaintiff instituted the suit for a declaration
of title in respect of 30 cents, which was subsequently reduced
to 25 cents, in Survey No.124/26 of Kottarakkara Village
claiming that it is the property obtained under registered lease
deed 361/1125 M.E. It was the case of plaintiff that second
SA 624/1994 4
defendant obtained 17 cents of the property which lies to the
north-west of that property which was subsequently purchased
by 3rd defendant and Renganatha Reddiar and thereafter by 8th
defendant and the survey plan prepared at the instance of
second defendant is not correct and plaintiff is entitled to a
declaration of his leasehold right and to set aside Ext.A1 decision
of the Supreintendent of Survey Land Records in the appeal filed
by plaintiff and Ext.A2, the decision of the Secretary of the
Revenue challenging Ext.A1 order and Ext.A6, the decision of
the District Collector. Registered Lease deed 361/1125 M.E,
under which plaintiff claimed title to the property, was not
produced. It is admitted case that O.S.299/1996 was filed by
Aliyamma Alikutty before Munsiff Court, Kottarakkara and
plaintiff in the present suit was the 4th defendant in that suit.
Second defendant was the third defendant. It is also admitted
case that 95 cents in Survey No.124/26 originally belonged to
Sankara Pillai Govinda Pillai who alienated the property under
different documents to the parties to that suit. Plaintiff who was
the 4th defendant in that suit was claiming 30 cents in that suit.
That suit was filed for declaration of title and possession and for
fixation of boundary of plaintiff Aliyamma Alikutty who claimed
title to a portion of 95 cents under Sankara Pillai Govinda Pillai.
Ext.B10 judgment shows that a Commissioner was appointed and
SA 624/1994 5
the Commissioner demarcated the properties belonging to the
parties including the 4th defendant in that suit. Ext.B1 is the
decree. Ext.B1 and B10 establish that the property obtained by
the plaintiff in this suit was specifically demarcated in the plan
as the property obtained under the lease deed claimed by
plaintiff in this case. Learned Munsiff and learned Sub Judge
found that in view of the fixation of the boundaries of the
property of the plaintiff under Ext.B10 judgment and B1 decree,
they are binding on the plaintiff. The argument of the learned
counsel appearing for appellant is that as the plaintiff and
second defendant were respectively defendants 4 and 3 in that
suit, Ext.B10 judgment will not operate as resjudicata as against
co-defendants and therefore finding of courts below is not
sustainable. I cannot agree with the submission. Though
property of the plaintiff, 4th defendant in that suit, was not
specifically scheduled in the plaint, that suit was not only for
declaration of title of the plaintiff therein, but also for fixation of
boundaries. The boundaries could be fixed only by fixing the
boundaries claimed by defendants in that suit, including plaintiff
herein. Therefore when the boundaries of the properties
scheduled in the plaint was demarcated, the demarcation
depends upon the correctness of the demarcation of the property
of 4th defendant therein also. Any deviation from that plan with
SA 624/1994 6
regard to the property of 4th defendant would automatically
amount to varying the boundaries of the plaintiff in that case. In
such circumstances, as rightly found by courts below, fixation of
the boundary in Ext.B10 judgment including fixation of boundary
of the property of 4th defendant the plaintiff herein will be
binding. As that judgment has become final, plaintiff is not
entitled to seek modification of the said boundary by filing a
separate suit. Moreover, subsequent to Ext.B10 judgment
plaintiff filed O.S.192 of 1975, a suit for injunction in respect of
this property. As per Ext.B2 judgment, that suit was dismissed
following Ext.B10 judgment in O.S.299 of 1966. That judgment
has also become final. Ext.B2 judgment is definitely binding on
the plaintiff. Therefore courts below rightly found that suit is
barred in view of Ext.B2 and B10 judgments. Appellants are
therefore not entitled to the decree sought for in the suit.
Appeal is dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-
SA 624/1994 7
M.SASIDHARAN NAMBIAR, J
S.A.624 OF 1994
JUDGMENT
26.11.2007