IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1390 of 2004()
1. V.S.PAUL S/O. KUPPEN VELU,
... Petitioner
Vs
1. THOMAS S/O. MATHEW, AGED 53 YEARS,
... Respondent
2. THANKACHAN PULIANMMALA, ACCOUNTANT
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.PHILIP T.VARGHESE
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :22/02/2010
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.1390 of 2004
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Dated this the 22nd day of February, 2010
J U D G M E N T
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Respondents appear through counsel.
2. Second Appeal arises from judgment and decree of
learned Additional District Judge, Thodupuzha in A.S.No.96 of 2002
confirming judgment and decree of learned Sub Judge, Kattappana
in O.S. No.83 of 2000. That was a suit filed by the appellant for
decree for prohibitory injunction to restrain respondents from
trespassing into the suit property The suit property is described as
1.19 acres being forming part of 1.31 acres in Sy.No.116 which
according to the appellant was acquired by his father, Kuppan Velu
as per Patta No.3981 of 1962. On the death of the father in 1974
appellant inherited the said 1.31 acres. Suit property is 1.19 acres
excluding 12 cents appellant claimed to have assigned to a third
party. Respondents have property on the east of the suit property
and they are trying to trespass. Respondent No.1 contended that
suit property does not belong to or is in the possession of appellant
and that son of respondent No.1 is in possession of the suit
property. He claimed that appellant unauthorisedly occupied a
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portion of the property. Respondent No.1 and others filed O.S.
Nos.59 of 1999 and 41 of 2000 against the appellant seeking reliefs.
Trial court dismissed O.S. Nos.59 of 1999 and 83 of 2000 but
granted a decree as prayed for in O.S. No.41 of 2000. Appeals
preferred by the appellant were dismissed. Judgment and decree of
the first appellate court in appeal arising from O.S.No.41 of 2000
was challenged in this Court in R.S.A. No.210 of 2008. But this Court
refused to condone delay in filing the appeal, dismissed the
application to condone delay and consequently that appeal was also
dismissed. Now challenge is to the judgment and decree in O.S.
No.83 of 2000 as confirmed in A.S. No.96 of 2002. Substantial
questions of law urged for a decision in the Second Appeal are
whether the principle of res judicata can be applied to the facts of
this case and whether appellant could be denied rights derived by
his predecessor-in-interest as per land assignment proceedings in
his favour even prior to the land assignment proceedings in favour of
the predecessor-in-interest. Learned counsel for the appellant
pressed into service the above points to buttress his contention that
findings entered by the courts below are erroneous. Learned
counsel for respondents contends that not only the decision in O.S.
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No.83 of 2000 operates as res judicata in view of Ext.A7, judgment
which has become final but also dismissal of R.S.A. No.210 of 2008
arising from the common judgment in O.S. No.41 of 2000 would also
operate as res judicata against the appellant.
3. Claim of appellant is in respect of 1.31 acres in Sy.No.16
said to be acquired by his father, Kuppan Velu as per Pata No.3981
of 1962. According to the appellant on the death of his father in
1974 the said property has devolved on him. Out of the said
property he has already sold 12 cents. Rest of the property to
which he is entitled is 1.19 acres scheduled in the plaint.
Respondents would contend that suit property is part of 5 acres
belonging to them in Sy.No.116 (re-survey number is 1335/3). It is
also case of respondents that appellant or his predecessor-in-
interest had no title or possession over any land comprised in R.S.
No.1335/3. Courts below found that appellant was not able to prove
title and possession claimed by him over the suit property.
Reference was also made to Ext.A7, copy of judgment in O.S. No.167
of 1973 filed by the appellant, his father Kuppan Velu and another
in respect of the same 1.31 acres in Sy.No.116 against the
predecessor-in-interest of the respondents. There also very same
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contentions were raised by the appellant and his predecessor-in-
interest tracing title to Patta No.3182 of 1962. Defendants in the
suit, predecessor-in-interest of respondents herein claimed that 5
acres in Sy.No.116 (R.S.No.1335/3) was acquired by Nanikutty
Amma as per proceedings in L.A.782/1964. Respondents claimed
that they purchased 5 acres from the said Nanikutty Amma as per
document No.2107 of 1998.
4. Exhibit A7 shows that in that case also property
concerned was 1.31 acres in Sy.No.116 over which appellant, his
father and others claimed title and possession. Court found that
Ext.A1, Patta in favour of Kuppan Velu was issued subject to re-
survey and demarcation and that the report and plan submitted by
the Advocate Commissioner did not tally with the descriptions in the
suit property in the plaint in O.S. No.167 of 1973. It was also found
that Sy.No.116 involved larger extent of land and Exts.X1 and X2
and the evidence of D.W.4, Deputy Director of Surveys examined in
O.S. No.167 of 1973 revealed that entitlement of Kuppan Velu was
only for the property covered by R.S. No.1335/8 & 9 while the 5
acres assigned to Nanikutty Amma as per L.A. No.782 of 1964 is
comprised in R.S. No.1335/3 over which appellant and his
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predecessor-in-interest claimed title and possession in O.S. No.167
of 1973 and which is agitated in the present suit. Court found that
in Ext.A7 case plaintiffs therein including the appellant failed to
establish title and possession of the property comprised in
R.S.No.1335/3. It is accordingly that O.S. No.167 of 1973 was
dismissed. Concededly that become final and hence would operate
as res judicata in the present suit.
5. Dismissal of R.S.A.No.210 of 2008 as barred by limitation
and thereby judgment and decree in A.S. No.95 of 2002 arising from
O.S. No.41 of 2000 filed by the respondent also operate as res
judicata against the appellants. There, property scheduled is 5 acres
including 1.19 acres scheduled in the present suit and upholding title
of plaintiffs therein decree was granted.
6. Learned counsel for appellant requested that in that
event right of the appellant in the property comprised in R.S.
No.1333/8 & 9 may be upheld. Entitlement of appellant and his
predecessor-in-interest is only regarding the property comprised in
R.S. No.1335/8 and 9. Appropriate observations regarding
entitlement of the appellant is made in Ext.A7, judgment. In the
light of that observations I do not think it necessary to make any
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direction in this case.
Subject to the above observation Second Appeal is dismissed
in limine.
Interlocutory Application No.2534 of 2004 shall stand
dismissed.
THOMAS P.JOSEPH, JUDGE.
vsv