{"id":213662,"date":"2010-07-07T00:00:00","date_gmt":"2010-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/avira-joseph-vs-varghese-mathai-on-7-july-2010"},"modified":"2014-12-13T05:42:48","modified_gmt":"2014-12-13T00:12:48","slug":"avira-joseph-vs-varghese-mathai-on-7-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/avira-joseph-vs-varghese-mathai-on-7-july-2010","title":{"rendered":"Avira Joseph vs Varghese Mathai on 7 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Avira Joseph vs Varghese Mathai on 7 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 867 of 1997(C)\n\n\n\n1. AVIRA JOSEPH\n                      ...  Petitioner\n\n                        Vs\n\n1. VARGHESE MATHAI\n                       ...       Respondent\n\n                For Petitioner  :SRI.ROY CHACKO\n\n                For Respondent  :SMT.ELIZABETH MATHAI IDICULLA\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :07\/07\/2010\n\n O R D E R\n                         P. BHAVADASAN, J.\n              - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                       S.A. Nos. 867 of 1997 &\n                               209 of 1998\n             - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n              Dated this the 7th day of July, 2010.\n\n                                JUDGMENT\n<\/pre>\n
          Three suits, i.e. O.S.Nos. 261 and 724 of 1982<\/p>\n
and O.S.193 of 1983 before the Munsiff’s Court,<\/p>\n
Alappuzha were jointly tried and disposed of by a<\/p>\n
common judgment. O.S. 261 of 1982 was filed by the<\/p>\n
respondents herein while the other two suits were filed<\/p>\n
by the appellant. The appellant’s suits were dismissed<\/p>\n
and respondents’ suit was decreed.                               The appellant<\/p>\n
preferred first appeals before the lower appellate court,<\/p>\n
which confirmed the judgment and decree of the court<\/p>\n
below.\n<\/p>\n
          2. O.S. 261 of 1982 is treated as the leading<\/p>\n
case and the parties and facts are referred to as they are<\/p>\n
available in the said suit.\n<\/p>\n
          3. The facts are as follows: All the three suits<\/p>\n
were for permanent prohibitory injunction.                            The plaint<\/p>\n
S.A.867\/97 & 209\/98.          2<\/span><\/p>\n
schedule property in O.S. 261 of 1992 has an extent of about<\/p>\n
four acres and is a garden land and paddy field. They are in<\/p>\n
Sy. Nos. 68\/12A and 12B, i.e. 1.27 acres comprised in Sy.<\/p>\n
No.68\/12A and 2.73 acres comprised in Sy. No.68\/12B. The<\/p>\n
properties were initially owned by the predecessors-in-<\/p>\n
interest of defendants 2 to 5 in O.S. 261 of 1982.       The<\/p>\n
properties were brought to sale in court auction in execution<\/p>\n
of the decree in O.S. 171 of 1094 M.E. of Munsiff’s court,<\/p>\n
Alappuzha. One Neelakanta Iyyer Subramaniya Iyyer bid the<\/p>\n
property and the sale was confirmed in his favour and<\/p>\n
possession was taken. The plaintiff and their predecessor in<\/p>\n
interest took the property on lease from Neelakanta Iyyer<\/p>\n
Subramniya Iyyer.      Ever since then, they are in actual<\/p>\n
possession and enjoyment of the property.         They have<\/p>\n
obtained purchase certificates also.      In the purchase<\/p>\n
certificates, some of the defendants were made parties.<\/p>\n
Even though they raised strong objection, that was rejected<\/p>\n
and purchase certificate was issued. Later, the defendants<\/p>\n
trespassed into the property and put up a shed therein.<\/p>\n
S.A.867\/97 & 209\/98.             3<\/span><\/p>\n
They have no manner of right over the suit property. So<\/p>\n
suits for prohibitory injunction and mandatory injunction<\/p>\n
were laid.\n<\/p>\n
             4.    Defendants 2, 3 and 4 contested the suit.<\/p>\n
According to them, their predecessors in interest were the<\/p>\n
owners of the property.        Even though the property was<\/p>\n
brought to sale and sold, no delivery was taken by the<\/p>\n
auction purchaser.       The property continued to be in the<\/p>\n
possession and enjoyment of the defendants and their<\/p>\n
predecessors in interest.      The order in O.A. is not binding<\/p>\n
on them. These defendants are not parties to the O.A. The<\/p>\n
second defendant has been in possession of the property for<\/p>\n
a long time and has been residing there for more than 70<\/p>\n
years.     Neither the plaintiff nor the first defendant have<\/p>\n
ever obtained possession of the suit property.            They<\/p>\n
therefore prayed for a dismissal of the suit.<\/p>\n
             5.    The trial court raised necessary issues for<\/p>\n
consideration.      The evidence consists of the testimony of<\/p>\n
P.Ws. 1 to 3 and the documents marked as Exts. A1 to A14.<\/p>\n
S.A.867\/97 & 209\/98.             4<\/span><\/p>\n
The contesting defendants had D.Ws. 1 to 3 examined and<\/p>\n
Exts.B1 to B9 marked. Exts. C1 to C3 are the commission<\/p>\n
report and plan, and C.Ws. 1 and 2 were examined as court<\/p>\n
witnesses.\n<\/p>\n
             6.     The trial court found that as per Ext.A1<\/p>\n
judgment dated 27.1.1960 Neelakanta Iyyer Subramania<\/p>\n
Iyyer had obtained delivery and possession of the property<\/p>\n
and thereafter the defendants have never been in<\/p>\n
possession of the property.        On the basis of the above<\/p>\n
findings, O.S. 261 of 1982 was decreed and the other two<\/p>\n
suits were dismissed. The trial court after consideration of<\/p>\n
the materials before it came to the following findings:<\/p>\n
                    “In the result, O.S. 261 of 1982 is<\/p>\n
      decreed restraining the defendants two to four<\/p>\n
      from trespassing into the plaint schedule property<\/p>\n
      and from taking usufructs therefrom.            The<\/p>\n
      Receiver appointed in O.S. 193 of 1983 is directed<\/p>\n
      to surrender the possession of the property<\/p>\n
      concerned to the plaintiffs in O.S. 261 of 1982<\/p>\n
      after complying with all the legal formalities. The<\/p>\n
      suits O.S. 724 of 1982 and O.S. 193 of 1983 are<\/p>\n
S.A.867\/97 & 209\/98.             5<\/span><\/p>\n
      dismissed. The parties in all the suits are directed<\/p>\n
      to bear their respective costs.”\n<\/p><\/blockquote>\n
               7.   The defendants, who suffered a decree in<\/p>\n
O.S.261 of 1982, and had their suits dismissed carried the<\/p>\n
matter in appeals, they did not succeed.          Hence these<\/p>\n
Second Appeals.<\/p><\/blockquote>\n
             8. The following questions of law are seen raised<\/p>\n
in the second appeals:\n<\/p>\n
             “i) Whether in view of the finding that O.S.<\/p>\n
      261\/82 is barred by res judicata were the courts<\/p>\n
      below justified in granting a decree in O.S. 261\/82<\/p>\n
      and consequently dismissing O.S. 724\/82 and<\/p>\n
      193\/83.\n<\/p><\/blockquote>\n
             ii)     Whether   Ext.A7    delivery  Kaychit<\/p>\n
      conclusively established that the entire plaint<\/p>\n
      schedule       property  was    delivered   to    the<\/p>\n
      predecessor-in-interest of the plaintiffs in O.S.<\/p>\n
      261\/82 and based on that document whether the<\/p>\n
      courts below were right in dismissing O.S. 724\/82<\/p>\n
      and O.S. 193\/83.\n<\/p><\/blockquote>\n
             iii) Whether the courts below were justified in<\/p>\n
      ignoring      Ext.B8  judgment    of the   Appellate<\/p>\n
S.A.867\/97 & 209\/98.            6<\/span><\/p>\n
      Authority (L.R.) wherein the patta issued to the<\/p>\n
      plaintiffs in O.S. 261\/82 was cancelled.<\/p>\n<\/blockquote>\n
             iv) Whether there was justification to enter<\/p>\n
      finding that the plaintiff in O.S. 724\/82 failed to<\/p>\n
      prove possession of the plaint schedule property.”<\/p>\n<\/blockquote>\n
             9. Learned counsel appearing for the appellants in<\/p>\n
these appeals raised three points for consideration. They<\/p>\n
are 1) pleadings in the earlier suit evidenced by Ext.A1<\/p>\n
judgment were not produced in the present suits and<\/p>\n
therefore the plea of res judicata ought not to have been<\/p>\n
entertained,         2) to the auction purchaser in execution<\/p>\n
proceedings the entire extent of property involved in these<\/p>\n
proceedings were not delivered, and            3)    purchase<\/p>\n
certificates have been set aside, so that the plaintiff in O.S.<\/p>\n<\/blockquote>\n
261 of 1982 cannot rely on them.\n<\/p>\n
             10. Learned counsel appearing for the contesting<\/p>\n
respondents on the other hand pointed out that there is no<\/p>\n
merit in any of the above contentions.        Learned counsel<\/p>\n
pointed out that there was no contention before the courts<\/p>\n
below that Ext.A1 judgment cannot be received in evidence<\/p>\n
S.A.867\/97 & 209\/98.             7<\/span><\/p>\n
and the plea of res judicata cannot be raised for want of<\/p>\n
production of pleadings in the earlier suit.          The said<\/p>\n
contention is taken up for the first time before this court and<\/p>\n
it is pointed out that the same may not be entertained.<\/p>\n
Equally unsustainable is the contention based on non-<\/p>\n
delivery of the entire extent as claimed by the appellant. It<\/p>\n
has been categorically found in the earlier suit that the<\/p>\n
entire property sold as per the court auction has been<\/p>\n
delivered. Even assuming that the order granting purchase<\/p>\n
certificates have been set aside, that does not help the<\/p>\n
appellant at all.\n<\/p>\n
             11. It cannot be disputed that there was an earlier<\/p>\n
suit between the parties, i.e. O.S. 98 of 1955, in which the<\/p>\n
same issues were involved. The said suit went against the<\/p>\n
appellant herein. It is contended that since the pleadings in<\/p>\n
the earlier case have not been produced, the plea of res<\/p>\n
judicata ought not to have been considered by the courts<\/p>\n
below.       In support of his contention, learned counsel<\/p>\n
appearing for the appellant relied on the decision reported in<\/p>\n
S.A.867\/97 & 209\/98.              8<\/span><\/p>\n
Ramachandra Dagdu Sonavane v. Vithu Hira Mahar<\/a><\/p>\n
((2009)10 SCC 273). It is also contended that the earlier suit<\/p>\n
was one for injunction alone and in the present suit the issue<\/p>\n
of title is involved. Even though it is said that in the earlier<\/p>\n
suit title was considered, that was only incidental and that<\/p>\n
title was not substantially or directly in issue in the earlier<\/p>\n
suit. On that ground also, the plea of res judicata cannot<\/p>\n
succeed.       Merely because the issue of title has been<\/p>\n
incidentally        gone into, will not enable the respondents<\/p>\n
herein to take the aid of previous judgment in which<\/p>\n
possession was the sole issue for consideration.<\/p>\n
             12.    It is true that in the decision reported in<\/p>\n
Ramachandra Dagdu Sonavane v. Vithu Hira Mahar<\/a><\/p>\n
(2009(10) SCC 273) it was held as follows:\n<\/p>\n
                    “To the same effect is the judgment of<\/p>\n
      this Court in Sulochana Amma v. Narayanan Nair<\/a><\/p>\n
      in which it has been held that the issue between<\/p>\n
      the same parties or persons under whom they<\/p>\n
      claim title or litigating under the same title, it<\/p>\n
      operates as a res judicata. A plea decided even in<\/p>\n
S.A.867\/97 & 209\/98.            9<\/span><\/p>\n
      a suit for injunction touching the title between the<\/p>\n
      same parties would operate as res judicata.<\/p>\n<\/blockquote>\n
                    The  learned  Senior    Counsel    Shri<\/p>\n
      Naphade by placing reliance on the observation<\/p>\n
      made by this Court in Syed Mohd. Salie Labbai v.<\/p>\n
      Mohd. Hajifa that the best method to decide the<\/p>\n
      question of res judicata is first to determine the<\/p>\n
      case of parties as put forward in their respective<\/p>\n
      pleadings of their previous suits and then to find<\/p>\n
      out as to what had been decided by the<\/p>\n
      judgments which operate as res judicata. It is the<\/p>\n
      contention of the learned Senior Counsel that the<\/p>\n
      pleadings of the suit of 1953 were not available to<\/p>\n
      the civil court while deciding the second suit of<\/p>\n
      1979 and, therefore, the High Court was justified<\/p>\n
      in holding that the finding of the civil court in the<\/p>\n
      second suit of 1979 and the appellate court<\/p>\n
      against that order regarding res judicata cannot<\/p>\n
      be upheld.\n<\/p><\/blockquote>\n
                    In Syed Mohd. case, this Court has<\/p>\n
      stated that before a plea of res judicata can be<\/p>\n
      given effect to the four conditions are required to<\/p>\n
      be proved. They are, that the litigating parties<\/p>\n
      must be the same; that the subject-matter of the<\/p>\n
      suit also must be identical; that the matter must<\/p>\n
S.A.867\/97 & 209\/98.                10<\/span><\/p>\n
      be finally decided between the parties; and that<\/p>\n
      the suit must be decided by a court of competent<\/p>\n
      jurisdiction.       This Court while analysing those<\/p>\n
      conditions as matter of fact found that the parties<\/p>\n
      had not even filed the pleading of the suits<\/p>\n
      instituted by them. In that factual scenario, this<\/p>\n
      Court had to observe that the pleadings cannot be<\/p>\n
      proved merely by recitals of the allegations<\/p>\n
      mentioned in the judgment.\n<\/p><\/blockquote>\n
                    It is true that if an earlier judgment has<\/p>\n
      to operate as res judicata in the subsequent<\/p>\n
      proceedings, then all the necessary facts including<\/p>\n
      pleadings of the earlier litigation must be placed<\/p>\n
      on record in the subsequent proceedings. In the<\/p>\n
      judgment and decree in O.S. 2353 of 1979, the<\/p>\n
      trial Jude in extenso has referred to the pleadings<\/p>\n
      of the parties in the earlier suit with reference to<\/p>\n
      the copy of the judgment and decree passed in<\/p>\n
      O.S. No.104 of 1953 which was produced by the<\/p>\n
      appellants along with the other documents and it<\/p>\n
      is only thereafter that the issue regarding<\/p>\n
      adoption of Vithu was one of the issues framed in<\/p>\n
      the 1953 suit and the court after referring to the<\/p>\n
      pleadings of both the parties and the evidence<\/p>\n
      adduced has specifically answered the issue by<\/p>\n
S.A.867\/97 & 209\/98.            11<\/span><\/p>\n
      holding that Vithu has failed to prove that he is an<\/p>\n
      adopted        son of  the    deceased     watandar.<\/p>\n
      Therefore, we cannot accept the contention of<\/p>\n
      learned Senior Counsel Sri. Shekhar Naphade.”<\/p>\n<\/blockquote>\n
So also in the decision reported in Sreedharan v. Uniiatha<\/p>\n
(1985 K.L.T. 181) it was held as follows:\n<\/p>\n
                    “The word “substantially” means “of<\/p>\n
      importance       and  value”  and     a  matter    is<\/p>\n
      substantially in issue if it is of importance and<\/p>\n
      value for the decision of the case. To illustrate, an<\/p>\n
      unnecessary or irrelevant issue, the decision of<\/p>\n
      which either way will not affect the decision of<\/p>\n
      suit, cannot be of any importance or value for the<\/p>\n
      decision of the suit and is, therefore, not<\/p>\n
      substantially in issue. Courts have laid down that<\/p>\n
      to constitute a matter directly and substantially in<\/p>\n
      issue, it is not necessary that a distinct issue<\/p>\n
      should have been raised upon it; it is sufficient if<\/p>\n
      the matter was in issue in substance. The point<\/p>\n
      whether a matter was directly and substantially in<\/p>\n
      issue in the former suit is to be decided with<\/p>\n
      reference to the fact, and circumstances of each<\/p>\n
      particular case. It is essentially a question of fact.<\/p>\n
      If the parties and the court considered the matter<\/p>\n
S.A.867\/97 & 209\/98.            12<\/span><\/p>\n
      as if it formed a direct and principal issue, it must<\/p>\n
      be taken to have been directly and substantially in<\/p>\n
      issue. It is not possible to formulate any ground<\/p>\n
      rules to decide whether a previous decision<\/p>\n
      regarding title in a suit for injunction does not<\/p>\n
      operate as res judicata in a subsequent suit for<\/p>\n
      recovery of property on the strength of title. The<\/p>\n
      question essentially depends upon the fact<\/p>\n
      whether the issue as to title raised in the<\/p>\n
      subsequent suit was directly and substantially in<\/p>\n
      issue in the former suit and was the ground for the<\/p>\n
      ultimate decision, and this again depends upon<\/p>\n
      the circumstances of each case. Certainly if the<\/p>\n
      issue     in  regard to    title was   directly   and<\/p>\n
      substantially in issue in the former suit, the finding<\/p>\n
      on it would operate as res judiata if the<\/p>\n
      determination of that issue constituted           the<\/p>\n
      stereobate for the ultimate decision. But if it was<\/p>\n
      not in issue at all or was only collaterally and<\/p>\n
      incidentally in issue, it would not so operate.<\/p>\n
      Where for the purpose of deciding the suit for<\/p>\n
      injunction,    the  question    of title  has    been<\/p>\n
      specifically considered and decided and that<\/p>\n
      formed the principal ground for the ultimate<\/p>\n
      decision, that decision will operate as res judicata<\/p>\n
S.A.867\/97 & 209\/98.             13<\/span><\/p>\n
      between the parties. The fact that the former suit<\/p>\n
      could have been decided without reference to the<\/p>\n
      question of title may not be of any importance,<\/p>\n
      when in a given case the suit has been decided<\/p>\n
      solely on the basis of title to the property. In this<\/p>\n
      context it has to be noted that the Supreme Court<\/p>\n
      has held that: “A final decision in any matter at<\/p>\n
      issue between the parties is based by a court on<\/p>\n
      its decisions on more than one point-each of which<\/p>\n
      by itself would be sufficient for the ultimate<\/p>\n
      decision-the decision on each of these points<\/p>\n
      would operate as res judicata between the<\/p>\n
      parties.” A finding which is the real ground of the<\/p>\n
      ultimate decision will operate as res judicata even<\/p>\n
      though there may have been other issues on<\/p>\n
      which the case might equally well have been<\/p>\n
      decided. In other words, where the judgment is<\/p>\n
      based on the findings on two issues one of which<\/p>\n
      by itself is sufficient to sustain the judgment, the<\/p>\n
      decision on both the issues will be res judicata<\/p>\n
      inasmuch as the decision of the suit in such cases<\/p>\n
      must be taken to have rested on the findings on<\/p>\n
      both the issues, each being an additional of<\/p>\n
      supplemental ground to the other for the disposal<\/p>\n
      of the suit.\n<\/p><\/blockquote>\n
S.A.867\/97 & 209\/98.             14<\/span><\/p>\n<\/blockquote>\n
                    In sum, what I understand is that the<\/p>\n
      only determinations which are necessary to the<\/p>\n
      decision-which are fundamental to it and without<\/p>\n
      which it cannot stand-will operate as res judicata.<\/p>\n
      Other determinations, without which it would still<\/p>\n
      be possible for the decision to stand, however<\/p>\n
      definite be the language in which they are<\/p>\n
      expressed, cannot support a plea of res judicata<\/p>\n
      between the          parties between whom those<\/p>\n
      determinations were pronounced.           I quote an<\/p>\n
      ancient authority-a statement of the principle by<\/p>\n
      Coleridge J.\n<\/p><\/blockquote>\n
                    “The judgment concludes, not merely as<\/p>\n
      to the point actually decided, but as to a matter<\/p>\n
      which it was necessary to decide, and which was<\/p>\n
      actually decided, as the ground work of the<\/p>\n
      decision itself, though not then directly the point<\/p>\n
      at issue.”\n<\/p><\/blockquote>\n
                    R.V.   Harlington,    Middle      Quarter<\/p>\n
      (inhabitants) (1855) 4E & B 780 at pages 794-95)<\/p>\n
      It is exceedingly difficult to distinguish the matters<\/p>\n
      fundamental or cardinal to the prior decision,<\/p>\n
      necessarily involved in it as its legal justification or<\/p>\n
      foundation, from matters which even though<\/p>\n
      actually raised and decided as being in the<\/p>\n
S.A.867\/97 & 209\/98.            15<\/span><\/p>\n
      circumstances      of the   case   the   determining<\/p>\n
      considerations; yet are not in point of law the<\/p>\n
      essential      foundation or   groundwork     of  the<\/p>\n
      judgment. How to make this essential distinction-I<\/p>\n
      should say in order to delineate this essential<\/p>\n
      distinction, one has always to enquire with<\/p>\n
      unrelenting severity-is the determination of the<\/p>\n
      issue upon which it is sought to found a plea of res<\/p>\n
      judicata, so fundamental to the substantive<\/p>\n
      ultimate decision, that the latter cannot stand<\/p>\n
      without the former. Nothing short of this will do.<\/p>\n
      It is well settled that a mere step in the reasoning<\/p>\n
      of the ultimate decision is insufficient.     What is<\/p>\n
      required is no less than the determination of law,<\/p>\n
      or fact or both fundamental to the substantive<\/p>\n
      decision.”\n<\/p><\/blockquote>\n
So also in the decision reported in Sajjadanshin Sayed v.<\/p>\n
Musa Dadabhai Ummer<\/a> ((2000) 3 SCC 350), it was held as<\/p>\n
follows:\n<\/p>\n
                    “The words “collaterally or incidentally<\/p>\n
      in issue” have come up for interpretation in<\/p>\n
      several common law jurisdictions in the context of<\/p>\n
      the principle of res judicata. While the principle<\/p>\n
      has been accepted that matters collaterally or<\/p>\n
S.A.867\/97 & 209\/98.              16<\/span><\/p>\n
      incidentally in issue are not ordinarily res judicata,<\/p>\n
      it has however been accepted that there are<\/p>\n
      exceptions to his rule.        The English, American,<\/p>\n
      Australian and Indian courts and jurists have<\/p>\n
      therefore proceeded to lay down certain tests to<\/p>\n
      find out if even an earlier finding on such an issue<\/p>\n
      an be res judicata in a later proceeding. There<\/p>\n
      appears to be a common thread in the tests laid<\/p>\n
      down in all these countries. We shall, therefore,<\/p>\n
      refer to these developments.”\n<\/p><\/blockquote>\n
             13. It is well settled that in a suit for injunction the<\/p>\n
question of title does not arise for consideration and the<\/p>\n
sole issue to be decided is to who is in possession of the<\/p>\n
property      as on the date of the suit. But, if the issue of<\/p>\n
possession was so interlinked with title, so that an issue<\/p>\n
regarding title had to be raised and had to be considered<\/p>\n
and it was in fact so done, then it assumes a different<\/p>\n
character. In such case, if there was an issue regarding title<\/p>\n
and the parties had gone for trial fully conscious of the<\/p>\n
various issues raised in the suit, then after having invited<\/p>\n
decision against them with regard to title, in the subsequent<\/p>\n
S.A.867\/97 & 209\/98.           17<\/span><\/p>\n
suit they cannot be heard to say that the earlier decision is<\/p>\n
not res judicata. If on the other hand an issue regarding title<\/p>\n
is only collateral or incidental to the main issue, and then<\/p>\n
even if it is decided in the earlier suit, the finding therein<\/p>\n
would not ordinarily operate as res judicata. In the case on<\/p>\n
hand, a perusal of Ext.A1 will clearly show that the issue<\/p>\n
regarding title was agitated, the parties had gone to trial<\/p>\n
fully conscious of that fact, evidence was adduced and it was<\/p>\n
found that the appellants had no title to the suit property.<\/p>\n<\/blockquote>\n
True, as laid down in the decision reported in Madhavi<\/p>\n
Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi<\/p>\n
Pillai<\/a> ((2000) 6 SCC 301) mere finding on an incidental<\/p>\n
question may not as such constitute res judicata. But if on<\/p>\n
the other hand as already stated, the issue of possession<\/p>\n
and title are so interlinked, and it becomes necessary to<\/p>\n
consider the question of title, then if decided that will be<\/p>\n
binding on the parties. If on the other hand the decision on<\/p>\n
the issue of title was only incidental or collateral, neither<\/p>\n
side can take aid of it in a subsequent proceedings. Both<\/p>\n
S.A.867\/97 & 209\/98.             18<\/span><\/p>\n
the courts below have found that in the earlier suit the issue<\/p>\n
regarding title was relevant and in fact an issue had been<\/p>\n
raised regarding title. In the light of the above facts, the<\/p>\n
contention of the learned counsel for the appellant that the<\/p>\n
issue of title was not decided in the earlier suit cannot be<\/p>\n
countenanced.\n<\/p>\n
             14. It is not seen from the judgment of the lower<\/p>\n
court that the contention based on want of production of<\/p>\n
pleadings in the earlier case for considering the question of<\/p>\n
res judicata was raised before the court below at all. It is<\/p>\n
true that in the decision reported in Ramachandra Dagdu<\/p>\n
Sonavane ‘s case, it was held that it is necessary to<\/p>\n
produce the pleadings in the earlier case to put forward a<\/p>\n
successful plea of res judicata. This is because the court<\/p>\n
trying the subsequent suit has to ascertain whether on<\/p>\n
pleadings and materials before the court in the earlier suit,<\/p>\n
the issue that is stated to be res judiata did in fact arise for<\/p>\n
consideration. In case where there is a doubt regarding the<\/p>\n
actual issue involved in the previous suit, it may not be<\/p>\n
S.A.867\/97 & 209\/98.             19<\/span><\/p>\n
strictly necessary to scrutinize the pleadings in the said suit.<\/p>\n
But when it is manifest from the judgment itself that an<\/p>\n
issue has been raised in that regard, there will be no<\/p>\n
justification for insisting that the pleadings in the earlier suit<\/p>\n
must be produced. True, res judicata is a rule of evidence.<\/p>\n
But there is nothing which prevents the courts from looking<\/p>\n
into the earlier judgment,       to see what were the issues<\/p>\n
involved in that suit and what are the decisions on those<\/p>\n
issues. Viewed from that angle, it could be seen that in the<\/p>\n
earlier case, i.e. O.S. 98 of 1955 the court did raise a<\/p>\n
question regarding title and found against the appellants<\/p>\n
herein.      Therefore, the contention based on failure of<\/p>\n
production of pleadings and also that the issue of title was<\/p>\n
only incidental and collateral in the previous suit cannot be<\/p>\n
accepted.\n<\/p>\n
             15. Equally unsustainable is the contention that<\/p>\n
after the auction sale the entire property covered by the sale<\/p>\n
was not delivered. The plaintiff in O.S. 261 of 1982 has<\/p>\n
produced a delivery kychit dated 5.1.1101 M.E. It clearly<\/p>\n
S.A.867\/97 & 209\/98.            20<\/span><\/p>\n
shows that the entire property had been delivered over to<\/p>\n
the auction purchaser. In the light of this document, it is for<\/p>\n
the defendants or in other words the appellant herein to<\/p>\n
prove that the kychit does not reflect the true state of affairs<\/p>\n
and the properties were not infact delivered to the auction<\/p>\n
purchaser. In fact in the previous proceedings, this issue<\/p>\n
was also considered and the courts, after scrutinizing the<\/p>\n
materials before it came to the conclusion that delivery was<\/p>\n
given and the auction purchaser had obtained possession of<\/p>\n
the property.       Therefore, even assuming that the order<\/p>\n
granting purchase certificates have been set aside, it may<\/p>\n
not be of much use to the appellant herein.\n<\/p>\n
             16. The claim that the appellant was residing in<\/p>\n
the property was also found against by both the courts<\/p>\n
below. No independent evaluation of evidence is necessary<\/p>\n
on this matter.\n<\/p>\n
             17. Apart from all the above, there is one fatal<\/p>\n
aspect in this case. One may recall that there are three<\/p>\n
suits which were jointly tried. There were three appeals<\/p>\n
S.A.867\/97 & 209\/98.          21<\/span><\/p>\n
also from the decrees passed by the trial court.           The<\/p>\n
decisions in all the suits and the appeals went against the<\/p>\n
appellant.     For reasons best known to the appellant, the<\/p>\n
appellant chose not to file appeal against the judgment and<\/p>\n
decree in O.S. 193 of 1983, which was confirmed in appeal<\/p>\n
as A.S. 57 of 1994. One cannot but, note that in all the three<\/p>\n
suits the issues involved were common and the decision on<\/p>\n
an issue in one suit will have considerable impact on the<\/p>\n
other suit also. That be the position, the present appeals by<\/p>\n
the appellant are barred by res judicata.\n<\/p>\n
             18.    Faced with the above situation, learned<\/p>\n
counsel appearing for the appellant pointed out that in O.S.<\/p>\n
193 of 1983 the extent of property involved was only 2.49<\/p>\n
acres, whereas the total extent of property involved in all<\/p>\n
the suits are four acres. Therefore, the mere fact that he<\/p>\n
has not filed an appeal in O.S. 193 of 1983 is not a ground to<\/p>\n
non-suit him.\n<\/p>\n
             19. The argument has no legal basis at all. The<\/p>\n
extent of property involved in each of the suits is irrelevant.<\/p>\n
S.A.867\/97 & 209\/98.           22<\/span><\/p>\n
What is significant is the nature of the issues taken up for<\/p>\n
consideration by the court. It cannot be disputed by the<\/p>\n
appellant that in all the three suits the issues that arose for<\/p>\n
consideration were identical. It cannot also be disputed that<\/p>\n
decision in one suit will have a considerable impact on the<\/p>\n
decision on the other suits also.     In such a situation, an<\/p>\n
appeal from the judgment and decree passed by the lower<\/p>\n
appellate court in O.S. 193 of 1983 ought to have been filed<\/p>\n
by the appellant.\n<\/p>\n
             20. In the decision reported in Ram Prakash v.<\/p>\n
Charan Kaur<\/a> ((1997) 9 SCC 543) it was held that when<\/p>\n
there are two connected suits, one by the plaintiff and the<\/p>\n
other by the defendant claiming damages against each<\/p>\n
other, and they are disposed of by a common judgment,<\/p>\n
appeal will have to be preferred from both of them. Appeal<\/p>\n
against the decree in one of the suits alone will not be<\/p>\n
sufficient. The decision in the other suit will operate as res<\/p>\n
judicata. In the decision reported in Premier Tyres Limited<\/p>\n
v. The Kerala State Road Transport Corporation (AIR<\/p>\n
S.A.867\/97 &<\/span><\/a> 209\/98.             23<\/p>\n
1993 SC 1202) also the same issue was considered. In the<\/p>\n
above decision there were three suits involved.            It so<\/p>\n
happened that only two appeals were filed and the apex<\/p>\n
court held as follows:\n<\/p>\n
                    “Although none of these decisions were<\/p>\n
      concerned with a situation where no appeal was<\/p>\n
      filed against the decision in connected suit but it<\/p>\n
      appears that where an appeal arising out of<\/p>\n
      connected suits is dismissed on merits, the other<\/p>\n
      cannot be heard, and has to be dismissed. The<\/p>\n
      question is what happens where no appeal is filed,<\/p>\n
      as in this case from the decree in connected suit.<\/p>\n
      Effect of non-filing of appeal against a judgment or<\/p>\n
      decree is that it become final. This finality can be<\/p>\n
      taken away only in accordance with law. Same<\/p>\n
      consequences follows when a judgment or decree<\/p>\n
      in a connected suit is not appealed from.”<\/p>\n<\/blockquote>\n
The matter was elaborately considered in the decision<\/p>\n
reported in Janardhanan Pillai v. Kochunarayani Amma<\/a><\/p>\n
(1976 KLT 279), wherein it was held as follows:<\/p>\n
                    “Stated in simple form the principle of<\/p>\n
      the rule of res judicata is that when once there<\/p>\n
S.A.867\/97 & 209\/98.           24<\/span><\/p>\n
      has been a decision between the parties to a suit<\/p>\n
      this rule will preclude the trial of a fresh suit for<\/p>\n
      the same relief between the same parties. So is<\/p>\n
      the case with a defendant setting up the same<\/p>\n
      plea in a subsequent suit between the same<\/p>\n
      parties. The suit or issue must have been heard<\/p>\n
      and finally decided in order to constitute res<\/p>\n
      judicata. “Former” in Explanation I denotes a suit<\/p>\n
      which is decided     prior to the suit in question<\/p>\n
      irrespective of whether it was instituted earlier or<\/p>\n
      later. If there are two suits in which the matter<\/p>\n
      directly and substantially in issue are the same<\/p>\n
      that the earlier decision in one of the suits bars a<\/p>\n
      fresh decision in the other suit is evident from the<\/p>\n
      provisions in S.11 of the CPC. In cases where two<\/p>\n
      or more suits between the same parties relating<\/p>\n
      substantially to the same matter are decided and<\/p>\n
      only one of them is challenged by way of appeal,<\/p>\n
      we fail to see how it can be said that the decisions<\/p>\n
      are simultaneous and hence there can be no bar<\/p>\n
      of res judicata. If the party takes up in appeal<\/p>\n
      only one of the decisions, the others become final.<\/p>\n
      The question of res judicata would arises for<\/p>\n
      determination only when the appeal against the<\/p>\n
      connected decision is taken up for consideration.<\/p>\n
S.A.867\/97 & 209\/98.            25<\/span><\/p>\n
      That will necessarily be at a subsequent point of<\/p>\n
      time.      At that moment there would be earlier<\/p>\n
      decisions which have become final. The question<\/p>\n
      whether the decision from which appeal has been<\/p>\n
      filed and the decisions which have become final<\/p>\n
      were rendered simultaneously would then be<\/p>\n
      really     irrelevant. Within  the   meaning     of<\/p>\n
      explanation I of S.11 of the C.P.C. the decision<\/p>\n
      which becomes final by being not appealed<\/p>\n
      against becomes an earlier decision in a matter<\/p>\n
      directly and substantially in issue in the former<\/p>\n
      suit and operates as res judicata.         This is<\/p>\n
      notwithstanding the very serious consequence<\/p>\n
      that the party who has filed appeal against only<\/p>\n
      one of the two decrees may have to face. It is not<\/p>\n
      as if his right of appeal becomes unavailable to<\/p>\n
      him because of the bar of res judicata. He has the<\/p>\n
      right to have his appeal taken up and considered,<\/p>\n
      but he cannot get relief to the extent the question<\/p>\n
      in issue which calls for decision in the appeal<\/p>\n
      cannot be considered on the merits by reason of<\/p>\n
      the bar of res judiata. If the party to the decree<\/p>\n
      would be bound by the decree if he does not<\/p>\n
      challenge      the   decree he   must    face  the<\/p>\n
      consequences of his failure to appeal against it,<\/p>\n
S.A.867\/97 & 209\/98.             26<\/span><\/p>\n
      such consequences being the finality thereof.<\/p>\n
      Such finality would debar a decision afresh on the<\/p>\n
      question even if it be in an appeal against a<\/p>\n
      simultaneous decision. We do not see justification<\/p>\n
      to import any rule of expediency to the context.<\/p>\n
      There is no logic which compels us to adopt the<\/p>\n
      view that an earlier decision in a former suit may<\/p>\n
      not operate as res judicata in the vent that<\/p>\n
      decision was reached simultaneously with the<\/p>\n
      decision in the suit from which the appeal is taken.<\/p>\n
      That would be against the plain provision in S.11<\/p>\n
      of the CPC. The question whether the plea of res<\/p>\n
      judicata is available is to be decided with<\/p>\n
      reference to the time the matter comes up for<\/p>\n
      consideration and if by that time there is an earlier<\/p>\n
      decision by a competent court between the same<\/p>\n
      parties which has become final and the question is<\/p>\n
      directly and substantially the same such earlier<\/p>\n
      decision would operate as res judicata barring a<\/p>\n
      fresh decision by the appellate court.”<\/p>\n<\/blockquote>\n
             21. In fact this sole ground is sufficient to dismiss<\/p>\n
the two appeals filed by the defendant in the suits and it<\/p>\n
would have been unnecessary to consider the appeal on<\/p>\n
merits.<\/p><\/blockquote>\n
S.A.867\/97 & 209\/98.          27<\/span><\/p>\n
             Whatever that be, it can thus be seen that the<\/p>\n
appeals are without merits and that they are liable to be<\/p>\n
dismissed. I do so confirming the judgments and decrees of<\/p>\n
the courts below. There will be no order as to costs.<\/p>\n
                                         P. BHAVADASAN,
\n                                              JUDGE<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Avira Joseph vs Varghese Mathai on 7 July, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 867 of 1997(C) 1. AVIRA JOSEPH … Petitioner Vs 1. VARGHESE MATHAI … Respondent For Petitioner :SRI.ROY CHACKO For Respondent :SMT.ELIZABETH MATHAI IDICULLA The Hon’ble MR. Justice P.BHAVADASAN Dated :07\/07\/2010 O R D E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-213662","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAvira Joseph vs Varghese Mathai on 7 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/avira-joseph-vs-varghese-mathai-on-7-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Avira Joseph vs Varghese Mathai on 7 July, 2010 - 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