IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 612 of 2001(C)
1. K. DIVAKARAN PILLAI
... Petitioner
Vs
1. G. SANTHAKUMARI AMMA
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.K.P.DANDAPANI (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :15/03/2010
O R D E R
HARUN-UL-RASHID, J.
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A.S.No.612 of 2001
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Dated this the 15th day of February, 2010
J U D G M E N T
The plaintiff in O.S.No.99 of 1996 on the file of the Sub
Court, Attingal, is the appellant. Suit is filed for declaration of
title, possession and for consequential injunction. The court
below held that the present suit is barred by principle of res
judicata and therefore the plaintiff is not entitled to the reliefs
sought for in the plaint and the suit was dismissed. Aggrieved by
the same, the plaintiff has preferred the appeal. Parties are
hereinafter referred to as the plaintiff and defendant as arrayed
in the suit.
2. Plaint A schedule property is having an extent of 1.85
acres of land in survey No.847/36. Plaint B schedule property is
1.34 acres which includes 1.30 acres registered land and 4 cents
of unregistered land. Plaint C schedule property is having an
extent of 42.750 cents. Plaint B schedule is the western plot and
plaint C schedule property is the eastern plot. Plaint B and C
schedule constitute plaint A schedule. It is the case of the parties
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that plaint A schedule property originally belonged to Gomathy
Amma, who is the mother of the defendant. After her death, the
defendant and other children of Gomathy Amma entered in to a
partition and plaint A schedule property was allotted to three
sharers. 45 cents was allotted to one Sivakumar, 70 cents lying
on the immediate west to Sasikumar and another 70 cents lying
west of the said 70 cents to Syamakumari. Sivakumar sold his
eastern plot to the defendant in the suit. Plaintiff purchased the
shares of Sasikumar and Syamakumari. The property scheduled
in the plaint are patta lands and patta was issued to the plaintiff
and defendant under the provisions of the Sreepadam
Enfranchisement Land Act, 1959. It is the case of the plaintiff
that patta issued is for 1.34 acres 42.750 cents respectively in
favour of plaintiff and defendant.
3. It is the case of the plaintiff that the defendant filed
O.S.No.298 of 1989 for permanent prohibitory injunction
restraining the plaintiff herein from interfering with her
possession and enjoyment of the property she obtained from her
brother, Sivakumar. The suit was decreed restraining the
defendant in that suit namely, the plaintiff herein, from
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trespassing into the plaint schedule property and further held
that the present defendant is in possession of the property. The
property scheduled in the said suit is 42.750 cents. It is the C
schedule property in this case. It is averred in the plaint that
though the relief sought for in the said suit was only in respect of
42.750 cents a decree was passed holding that the dividing line
between the properties of the plaintiff and defendant is EH line
shown in the plan appended to Ext.B2 decree. The present suit
was filed for declaration of title, possession, consequential
injunction and for putting up boundary.
4. In the written statement filed by the defendant it is
inter alia contended that the suit is barred by res judicata in view
of the decree and judgment passed in O.S.No.298 of 1989 on
the file of the Sub Court, Attingal. It is contended by the
defendant that the suit properties were measured, a plan was
prepared, right and possession of the defendant was established
in that case and that there is no puthuval land in possession of
the plaintiff as claimed. The defendant prayed for dismissal of
the suit.
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5. The parties did not adduce oral evidence. Exts.A1 to
A10, B1 to B3, C1 report and C1(a) plan were marked.
6. It is not disputed that plaint A schedule property
originally belong to Gomathy Amma. It is also not disputed that
the Gomathy Amma’s children partitioned the properties after her
death. Ext.A1 is the partition deed dated 27.4.1981. In Ext.A1
partition deed the plaint schedule properties were divided. 70
cents each were allotted to Sasikumar and SyamaKumari and 45
cents to Sivakumar. Plaintiff purchased the shares obtained by
Syamakumari and Sasikumar. 45 cents allotted to Sivakumar
was purchased by the defendant. As per Ext.A1, the extent of
the property divided was 70 + 70 + 45 = 1.85 acres. It is the
plaintiff’s case that though in Ext.A1, the extent of B and C
schedule properties are mentioned as 1.40 acres and 45 cents
respectively, he has got only 1.34 acres out of which 1.30 acres
is registered land and 4 cents unregistered. Similarly, the
plaintiff further contended that though 45 cents was allotted to
Sivakumar in Ext.A1 partition deed, the extent of property
available is 42.750 cents.
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7. There was a boundary dispute between the parties
during the year 1989. The present defendant filed O.S.No.298 of
1989. The judgment in that case is marked as Ext.B1 and Ext.B2
is the certified copy of the decree. Ext.B2 decree shows that the
plaint schedule property in O.S.No.298 of 1989 is 42.750 cents.
The defendant’s case in the said suit is that she is in possession
of the plaint schedule property and the plaintiff in the present
suit, who is the defendant in that suit is restrained by a decree of
injunction from trespassing into any portion of her property. In
that case, a commissioner was deputed to measure the plaint
schedule property. In the commissioner’s report and plan it is
reported that the plaint schedule property in the said suit is
having an extent of 45.5 cents. The commissioner also reported
that the boundary line between the properties of the parties is EH
line. The suit was decreed granting a decree for permanent
prohibitory injunction restraining the present plaintiff from
interfering with the possession and enjoyment of the plaintiff in
the said suit, who is the defendant herein.
8. As stated earlier, the defendant’s case in the earlier
suit is that he has got title and possession in respect of the plaint
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schedule property. The plaint schedule property in the earlier
suit is 42.750 cents. In that case the civil court passed a decree
granting the prayer for injunction at the same time holding that
the plaintiff is having possession of 45.5 cents of land. In this
case, the commissioner submitted a report and plan.
Commissioner measured plaint A, B and C schedule properties.
In the plan submitted by the commissioner it is reported that the
total extent of A schedule property is 1.79 acres and not 1.85
acres. The extent of B schedule property was found to be 1.34
acres and C schedule 45 cents. The three plots are measured
and marked. Plaint B schedule property is identified as plot
ABCEDFONKLM and C schedule as FGHIJKNO. The commissioner
reported that the plaint B schedule property which belongs to the
plaintiff is lying on the western side of plaint C schedule property
and that there is a permanent boundary in between B and C
schedule properties. It is reported that there is a ” ”
lying north-south separating the plaint B and C schedule
properties. The commissioner also reported that in B schedule
property rubber is planted and in C schedule there is coconut
cultivation. The commissioner with the help of the Taluk
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Surveyor measured the entire property claimed by the parties
under Ext.A1 partition deed, identified A, B and C schedule
properties and demarcated B and C schedule properties. The
commissioner also reported that plaint B schedule property
having a total extent of 1.34 acres is lying within separate
boundary and the C schedule property having an extent of 45
cents is also lying within well defined boundaries. Since two plots
belonging to the plaintiff and defendant are lying separately
under well defined boundaries, it is reported by the commissioner
that there is no necessity for locating the unregistered small
portions out of it. Measurements and demarcation of the
properties in accordance with the title deeds and on the basis of
the demarcating boundaries done by the commissioner was not
objected to by either parties. Neither the plaintiff nor the
defendant filed any objection to the commission report and plan.
So the commission report and plan was accepted. As per the
commission report and plan the defendant has got possession
and enjoyment of 45 cents and the plaintiff 1.34 acres. Both
parties derived title from the very same partition deed. The
defendant has 42.750 cents of land which is the plaint schedule
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property in the earlier suit filed by her. On measurement it is
found that she is in possession of 45 cents of land. The plaintiff
is not having any objection in the defendant enjoying 45 cents of
land as reported by the commissioner and identified in Ext.C1(a)
plan. Similarly, the commissioner reported and identified in the
plan that the properties claimed by the plaintiff is lying on the
western side of C schedule property and the said extent is having
1.34 acres though in the partition deed the extent is marked as
1.40 acres. In Ext.A2 assignment deed also the extent stated to
have purchased by the plaintiff is 1.40 acres of land. In the light
of the aforesaid facts and reasons, the plaintiff is entitled to a
decree of declaration of title and possession on the B schedule
property as identified by the commissioner in Ext.C1(a) plan.
9. The court below dismissed the suit finding that the suit
is barred by res judicata. The learned Judge had referred to the
previous suit between the parties. The court below examined
Ext.B1 judgment, Ext.B2 decree, written statement in O.S.No.298
of 1989 filed by the present defendant as the plaintiff. I have
already stated that the property scheduled in the said suit is
42.750 cents. The said suit was filed for perpetual injunction.
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In that case, a commissioner was deputed and he had marked
42.750 cents of property (plaint schedule property in
O.S.No.298/1998) of the present defendant and 1.30 acres of the
present plaintiff. The scope of the suit was limited to the prayer
for granting injunction. The court below formed issues regarding
the title of the plaintiff in that suit and the court below found that
the plaintiff in that suit is having title over the plaint schedule
property. The commissioner in that case demarcated the plaint
schedule property as per the plan appended to Ext.B2 decree. In
the plan the extent of land demarcated by the commissioner is as
per the title deed of the present defendant as 38.800 cents and
the adjoining property which is shown as disputed property lying
in between the property of the parties as 6.700 cents. The
commissioner measured and identified the properties belonging
to the plaintiff and defendant in the said suit. The commissioner
reported that though the present plaintiff claimed 1.40 acres of
land as per the title deed in that suit, the actual extent is
1.36.450 acres. The commissioner also separately shown 6.700
cents as the disputed portion. The civil court in that case held
that the plaintiff in that suit is entitled to enjoy 38.800 cents plus
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6.700 cents identified as part of plaintiff’s property. Thus, the
plaintiff was given a decree holding that the plaintiff is in
possession and enjoyment of 45.5 cents of land. The court below
also held that the dividing line between the properties of the
plaintiff and defendant is EH line so that the plaintiff is entitled to
a decree for 45.5 cents of land which includes 6.700 cents which
is separately shown as the disputed portion.
10. The commissioner in this suit on inspection found that
there is a well defined mud boundary wall in between the
properties of the plaintiff and defendant. The commissioner also
reported that the defendant who is the plaintiff in the earlier suit
is in possession and enjoyment of the eastern property and the
extent is 45 cents. The commissioner also reported that the
western property having an extent of 1.34 acres is in the
possession and enjoyment of the present plaintiff. Though the
earlier suit was for injunction the civil court entered a finding
regarding the title of the property and the present defendant got
45.5 cents as per the plan prepared by the commissioner. The
court below also taken note of the report of the commissioner in
the earlier suit that EH line in the plan is the exact boundary
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separating the properties of the plaintiff and defendant and the
civil court has come to a conclusion that the plaintiff has got title
over the property as per the plan shown as EH line. The court
below relied on the decision reported in Sulochana Amma v.
Narayanan Nair (AIR 1994 SC 152). It was held that in a suit
for injunction when the title is in issue, for the purpose of
granting injunction that issue directly and substantially arise in
that suit between the parties and when the same issue is put in
issue in a later suit based on title between the same parties the
decree in the injunction suit operates as res judicata. The court
below also relied on the decision reported in Sreedharan v.
Unniatha (1985 KLT 181) and held that the suit is barred by res
judicata.
11. Learned counsel for the respondent brought to the
notice of this Court the decisions rendered by the Apex Court in
K.Ethirajan (Dead by LRs) v. Lakshmi and others (2003 (10)
SCC 578), Gram Panchayath of Naulakha v. Ujagar Singh
and others (2000(7)SCC 543), Ramdhar Shrivas v.
Bhagwandas (2005(13) SCC 1) and V.Rajeswari v.
T.C.Saravana Bava (2004(1) SCC 551) and contended that the
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matter in issue in this suit is directly and substantially in issue in
the earlier suit. I have narrated all the facts and circumstances
leading to filing of the earlier suit and the present suit. I also
find that the scope and ambit of both suits are entirely different,
the subject matter is different and therefore the principles laid
down in the said decisions cannot be applied to the facts of this
case.
12. I cannot agree with the conclusions arrived by the
court below. The earlier suit was a simple suit for injunction
simplicitor. The subject matter of the said suit is 42.750 cents
of land which admittedly belong to the present defendant, who is
the plaintiff in that suit. It is shown that there was an issue
regarding the title to the said property. The court held that the
plaintiff is having title to the property. No decree was passed
declaring the title of the plaintiff. The court examined the title
only for the purpose of deciding whether the plaintiff has got
possession and enjoyment of the plaint schedule property in that
case. The court examined the claim of the plaintiff in that case,
perused the title deed and held that the plaintiff in that suit is
having title in respect of 42.750 cents of land and that he is in
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possession of the plaint schedule property. In fact the plaintiff in
the present suit did not deny the title of the plaintiff in the earlier
suit derived from her brother as per Ext.A1 partition deed. The
court below did not examine the scope of the earlier suit. The
subject matter of the suit is plaint C schedule property alone, suit
for injunction simplicitor and the decree passed is a decree of
perpetual injunction. The present suit is for claiming title,
possession and for putting up boundary in between the properties
of the defendant and plaintiff. In this case, A schedule is the
total extent, B schedule is the property belonging to the plaintiff
and C schedule is the property belonging to the defendant. The
plaintiff sought relief in respect of plaint B schedule property
which is not the subject matter of the earlier suit. In the present
suit the plaintiff prayed for declaration of title and for putting up
boundary on the eastern side of his property. The subject matter
of the earlier suit and the subject matter of the present suit are
different. In fact, the main prayer and the claim of the plaintiff is
for declaration of title over his property which is scheduled in the
plaint. The relief claimed in the present suit is in respect of plaint
B schedule property which is not the subject matter of the earlier
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suit. The subject matter of the earlier suit is C schedule
property for which no relief is claimed in the present suit. In
such circumstances, the finding of the court below that the
present suit is barred by res judicata cannot be countenanced at
all. The principle of res judicata was wrongly applied and the
decisions cited in the judgment were also wrongly applied by the
court below. I find that the suit is not barred by res judicata. In
fact, there is no dispute regarding the title of the plaintiff which
he obtained under Ext.A2 assignment deed. The only dispute is
regarding the actual extent of property held by the respective
parties. On the basis of the permanent boundary dividing B and
C schedule properties, the commissioner reported that C schedule
is having 45 cents and B schedule is having 1.34 acres. So long
as both sides did not object to the report and plan, the report and
plan has to be accepted and the plaintiff is entitled to a decree as
prayed for in the suit. The commissioner also identified the
dividing line between the properties in Ext.C1(a) plan. The green
shaded portion is identified as plaint B scheduled property and
the orange shaded portion is identified as plaint C schedule
property. The dividing line in between the properties is KNOF.
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In the result, the decree and judgment passed by the court
below is set aside. The plaintiff is given a decree declaring his
title and possession over 1.30 acres of registered land and his
possession over 4 cents of unregistered land. Thus , the plaintiff
is entitled to declaration of title and possession over plaint B
schedule property identified by the commissioner in Ext.C1(a)
plan as ABCDFONKLM. The plaintiff is allowed to put up a
permanent boundary on the line KNOF in Ext.C1(a) plan. The
defendant is restrained by a decree of permanent prohibitory
injunction from trespassing into and obstructing the plaintiff from
enjoying the plaint B schedule property. There will be no order
as to costs. Ext.C1(a) plan shall form part of the decree.
HARUN-UL-RASHID,
JUDGE.
bkn/-