High Court Kerala High Court

Madhavi vs Nadarajan on 2 July, 2010

Kerala High Court
Madhavi vs Nadarajan on 2 July, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 641 of 1997(B)



1. MADHAVI
                      ...  Petitioner

                        Vs

1. NADARAJAN
                       ...       Respondent

                For Petitioner  :SRI.M.C.SEN (SR.)

                For Respondent  :SRI.K.JAJU BABU

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :02/07/2010

 O R D E R
                         P. BHAVADASAN, J.
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                         S.A. No. 641 of 1997
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             Dated this the 2nd day of July, 2010.

                                JUDGMENT

The plaintiffs, who are non-suited by both the

courts below are the appellants.

2. The suit was one for injunction. According

to the plaintiffs, the property belongs to the third

plaintiff, who obtained it as per a purchase certificate

issued from the Land Tribunal concerned. Out of the

property she received as per the purchase certificate,

she sold 65 cents shown as item No.1 in the plaint to

plaintiffs 1 and 2 in the year 1974 and the balance

portion is still in her possession. Defendants have no

manner of right over the suit property. Some of the

children of the third plaintiff had earlier instituted a suit

for partition as O.S.71 of 1982. That was dismissed.

Appeal taken against the judgment and decree of the

lower appellate court was also dismissed. Inspite of the

dismissal of the earlier suit, raising the very same

S.A. 641/1997. 2

contentions, some other persons have come up to trespass

into the property. Therefore the plaintiffs are constrained to

approach the court.

3. Defendants 1 to 6 resisted the suit. According

to them, the property originally belonged to one

Kunhiraman. He died as a bachelor. Therefore his rights

devolved on his niece, the third defendant. According to

these defendants, the personal law of the parties is

Marumakkathayam law. Except the first defendant, others

claimed to be co-owners. They say that the assignments

made by the third plaintiff are not binding on them. Further,

they say that these defendants were not parties to the

earlier suit and the decision in that suit is not binding on

them. They say that they are also residing in the house

situate in the plaint schedule property and no relief can be

granted against them.

S.A. 641/1997. 3

4. The trial court raised necessary issues for

consideration. The evidence consists of the testimony of

P.W.1 and the documents marked as Exts.A1 to A10 from

the side of the plaintiffs. The defendants had D.W.1

examined and Exts.B1 to B3 marked.

5. The trial court on an appreciation of the

materials came to the conclusion that the parties follow

Marumakkathayam Law and if that be so defendants 2 to 6

are co-owners of the properties. Apart from that, it was also

found that the defendants are also in possession of the

property. Accordingly the suit was dismissed.

6. The plaintiffs carried the matter in appeal as

A.S. 27 of 1990. The appellate court concurred with the

finding of the trial court that the parties were governed by

Marumakkathayam law and the plaintiffs and defendants 2

to 6 are co-owners and accordingly dismissed the appeal.

7. The following questions of law have been raised

in the Memorandum of Second Appeal:

S.A. 641/1997. 4

“Whether in the facts and

circumstances of the case, the parties are

governed by the law of Marumakkathayam or they

are followers of Makkathayam law?

8. One must remember that this is a suit for

injunction simplicitor. The question of possession alone is

relevant. Learned counsel appearing for the appellants

points out that the judgment and decree in O.S.71 of 1982

as confirmed in A.S. 135 of 1985 operates as res judicata

and the suit ought to have been decreed. The contentions

raised by the defendants here were raised by the defendants

in the earlier suit and were found against. The defendants

cannot re-agitate the same issue and the courts below were

wrong in holding that the earlier decision is not binding on

the defendants in this case. It is contended that the

personal law of the parties is Mithakshara Law and that has

been omitted to be noticed by the courts below. The lower

courts have erred in holding that the parties are governed

by Marumakkathayam Law.

S.A. 641/1997. 5

9. There is no dispute regarding the fact that at

the relevant time Nani was the owner of the property. While

the plaintiffs would say that it was she who had acquired the

property, according to the defendants, she inherited it from

Kunhiraman, who was her uncle. The earlier suit was filed

by one of the children of third plaintiff herein claiming

partition of the property as O.S.71 of 1982. In that suit the

present defendants were not parties and it is evident that in

the present suit they are not claiming any rights through the

persons who were parties in the partition suit. They set up

independent rights.

10. It was unnecessary to go into the question

regarding personal law of the parties. As already noticed,

the suit was one for injunction simplicitor and all that the

court needs to look into was as to who is in possession of the

property. The trial court has found that except for the oral

evidence of P.W.1 there is nothing to show that the

defendants are trying to trespass into the property. It is also

found that some of the defendants are residing in the

S.A. 641/1997. 6

property and the trial court accepted the documents

produced by the defendants. The plaintiffs do not appear to

have a case that they are residing in the property. The

lower appellate court accepted the finding. It could thus be

seen that it could not be said that the defendants have

trespassed into the property or they are trying to trespass

into the property. Going by the plaintiffs’ evidence, it is also

evident that they are also residing in the hut. Viewed from

this angle, obviously the plaintiffs are not entitled to the

reliefs they have sought for.

11. However, it is pointed out by the learned

counsel for the appellants that other suits have been filed on

the basis of the finding in this suit that the parties are

governed by Marumakkathayam law and the finding of the

court below in this suit may prejudice the plaintiffs in the

other suits.

12. It has already been noticed that it wa

unnecessary to decide the personal law of the parties in this

suit and so also title to the property. Those questions do not

S.A. 641/1997. 7

arise for consideration at all. Having found that the

defendants are also in possession of the property, it is

unnecessary for the court below to consider the personal law

that is applicable to the parties.

In the result, while dismissing the appeal and

confirming the judgments and decrees of the courts below,

the question as to the personal law of the parties and title to

suit property are left open for decision in appropriate

proceedings. There will be no order as to costs.

P. BHAVADASAN,
JUDGE

sb.