{"id":238497,"date":"2010-03-15T00:00:00","date_gmt":"2010-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-divakaran-pillai-vs-g-santhakumari-amma-on-15-march-2010"},"modified":"2018-07-07T00:59:01","modified_gmt":"2018-07-06T19:29:01","slug":"k-divakaran-pillai-vs-g-santhakumari-amma-on-15-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-divakaran-pillai-vs-g-santhakumari-amma-on-15-march-2010","title":{"rendered":"K. Divakaran Pillai vs G. Santhakumari Amma on 15 March, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
K. Divakaran Pillai vs G. Santhakumari Amma on 15 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 612 of 2001(C)\n\n\n\n1. K. DIVAKARAN PILLAI\n                      ...  Petitioner\n\n                        Vs\n\n1. G. SANTHAKUMARI AMMA\n                       ...       Respondent\n\n                For Petitioner  :SRI.G.S.REGHUNATH\n\n                For Respondent  :SRI.K.P.DANDAPANI (SR.)\n\nThe Hon'ble MR. Justice HARUN-UL-RASHID\n\n Dated :15\/03\/2010\n\n O R D E R\n                       HARUN-UL-RASHID, J.\n                   -----------------------------------\n                         A.S.No.612 of 2001\n                   ---------------------------------\n            Dated this the 15th day of February, 2010\n\n                           J U D G M E N T\n<\/pre>\n
      The plaintiff in O.S.No.99 of 1996 on the file of the Sub<\/p>\n
Court, Attingal, is the appellant. Suit is filed for declaration of<\/p>\n
title, possession and for consequential injunction.      The court<\/p>\n
below held that the present suit is barred by principle of res<\/p>\n
judicata and therefore the plaintiff is not entitled to the reliefs<\/p>\n
sought for in the plaint and the suit was dismissed. Aggrieved by<\/p>\n
the same, the plaintiff has preferred the appeal.       Parties are<\/p>\n
hereinafter referred to as the plaintiff and defendant as arrayed<\/p>\n
in the suit.\n<\/p>\n
      2.    Plaint A schedule property is having an extent of 1.85<\/p>\n
acres of land in survey No.847\/36. Plaint B schedule property is<\/p>\n
1.34 acres which includes 1.30 acres registered land and 4 cents<\/p>\n
of unregistered land.     Plaint C schedule property is having an<\/p>\n
extent of 42.750 cents. Plaint B schedule is the western plot and<\/p>\n
plaint C schedule property is the eastern plot. Plaint B and C<\/p>\n
schedule constitute plaint A schedule. It is the case of the parties<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 2<\/span><\/p>\n
that plaint A schedule property originally belonged to Gomathy<\/p>\n
Amma, who is the mother of the defendant. After her death, the<\/p>\n
defendant and other children of Gomathy Amma entered in to a<\/p>\n
partition and plaint A schedule property was allotted to three<\/p>\n
sharers. 45 cents was allotted to one Sivakumar, 70 cents lying<\/p>\n
on the immediate west to Sasikumar and another 70 cents lying<\/p>\n
west of the said 70 cents to Syamakumari. Sivakumar sold his<\/p>\n
eastern plot to the defendant in the suit. Plaintiff purchased the<\/p>\n
shares of Sasikumar and Syamakumari. The property scheduled<\/p>\n
in the plaint are patta lands and patta was issued to the plaintiff<\/p>\n
and    defendant    under   the  provisions  of   the  Sreepadam<\/p>\n
Enfranchisement Land Act, 1959. It is the case of the plaintiff<\/p>\n
that patta issued is for 1.34 acres 42.750 cents respectively in<\/p>\n
favour of plaintiff and defendant.\n<\/p>\n
      3.   It is the case of the plaintiff that the defendant filed<\/p>\n
O.S.No.298 of 1989 for permanent prohibitory injunction<\/p>\n
restraining the plaintiff herein from interfering with her<\/p>\n
possession and enjoyment of the property she obtained from her<\/p>\n
brother, Sivakumar.      The suit was decreed restraining the<\/p>\n
defendant in that suit namely, the plaintiff herein, from<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 3<\/span><\/p>\n
trespassing into the plaint schedule property and further held<\/p>\n
that the present defendant is in possession of the property. The<\/p>\n
property scheduled in the said suit is 42.750 cents. It is the C<\/p>\n
schedule property in this case. It is averred in the plaint that<\/p>\n
though the relief sought for in the said suit was only in respect of<\/p>\n
42.750 cents a decree was passed holding that the dividing line<\/p>\n
between the properties of the plaintiff and defendant is EH line<\/p>\n
shown in the plan appended to Ext.B2 decree. The present suit<\/p>\n
was filed for declaration of title, possession, consequential<\/p>\n
injunction and for putting up boundary.\n<\/p>\n
      4.    In the written statement filed by the defendant it is<\/p>\n
inter alia contended that the suit is barred by res judicata in view<\/p>\n
of the decree and judgment passed in O.S.No.298 of 1989 on<\/p>\n
the file of the Sub Court, Attingal.      It is contended by the<\/p>\n
defendant that the suit properties were measured, a plan was<\/p>\n
prepared, right and possession of the defendant was established<\/p>\n
in that case and that there is no puthuval land in possession of<\/p>\n
the plaintiff as claimed. The defendant prayed for dismissal of<\/p>\n
the suit.\n<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 4<\/span><\/p>\n
      5.    The parties did not adduce oral evidence. Exts.A1 to<\/p>\n
A10, B1 to B3, C1 report and C1(a) plan were marked.<\/p>\n
      6.    It is not disputed that plaint A schedule property<\/p>\n
originally belong to Gomathy Amma. It is also not disputed that<\/p>\n
the Gomathy Amma’s children partitioned the properties after her<\/p>\n
death. Ext.A1 is the partition deed dated 27.4.1981.   In Ext.A1<\/p>\n
partition deed the plaint schedule properties were divided. 70<\/p>\n
cents each were allotted to Sasikumar and SyamaKumari and 45<\/p>\n
cents to Sivakumar. Plaintiff purchased the shares obtained by<\/p>\n
Syamakumari and Sasikumar. 45 cents allotted to Sivakumar<\/p>\n
was purchased by the defendant. As per Ext.A1, the extent of<\/p>\n
the property divided was 70 + 70 + 45 = 1.85 acres. It is the<\/p>\n
plaintiff’s case that though in Ext.A1, the extent of B and C<\/p>\n
schedule properties are mentioned as 1.40 acres and 45 cents<\/p>\n
respectively, he has got only 1.34 acres out of which 1.30 acres<\/p>\n
is registered land and 4 cents unregistered.       Similarly, the<\/p>\n
plaintiff further contended that though 45 cents was allotted to<\/p>\n
Sivakumar in Ext.A1 partition deed, the extent of property<\/p>\n
available is 42.750 cents.\n<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                  5<\/span><\/p>\n
      7.    There was a boundary dispute between the parties<\/p>\n
during the year 1989. The present defendant filed O.S.No.298 of<\/p>\n
1989. The judgment in that case is marked as Ext.B1 and Ext.B2<\/p>\n
is the certified copy of the decree. Ext.B2 decree shows that the<\/p>\n
plaint schedule property in O.S.No.298 of 1989 is 42.750 cents.<\/p>\n
The defendant’s case in the said suit is that she is in possession<\/p>\n
of the plaint schedule property and the plaintiff in the present<\/p>\n
suit, who is the defendant in that suit is restrained by a decree of<\/p>\n
injunction from trespassing into any portion of her property. In<\/p>\n
that case, a commissioner was deputed to measure the plaint<\/p>\n
schedule property. In the commissioner’s report and plan it is<\/p>\n
reported that the plaint schedule property in the said suit is<\/p>\n
having an extent of 45.5 cents. The commissioner also reported<\/p>\n
that the boundary line between the properties of the parties is EH<\/p>\n
line.   The suit was decreed granting a decree for permanent<\/p>\n
prohibitory injunction restraining the present plaintiff from<\/p>\n
interfering with the possession and enjoyment of the plaintiff in<\/p>\n
the said suit, who is the defendant herein.\n<\/p>\n
      8.    As stated earlier, the defendant’s case in the earlier<\/p>\n
suit is that he has got title and possession in respect of the plaint<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                  6<\/span><\/p>\n
schedule property. The plaint schedule property in the earlier<\/p>\n
suit is 42.750 cents. In that case the civil court passed a decree<\/p>\n
granting the prayer for injunction at the same time holding that<\/p>\n
the plaintiff is having possession of 45.5 cents of land. In this<\/p>\n
case,    the    commissioner   submitted    a    report and    plan.<\/p>\n
Commissioner measured plaint A, B and C schedule properties.<\/p>\n
In the plan submitted by the commissioner it is reported that the<\/p>\n
total extent of A schedule property is 1.79 acres and not 1.85<\/p>\n
acres. The extent of B schedule property was found to be 1.34<\/p>\n
acres and C schedule 45 cents. The three plots are measured<\/p>\n
and marked.       Plaint B schedule property is identified as plot<\/p>\n
ABCEDFONKLM and C schedule as FGHIJKNO. The commissioner<\/p>\n
reported that the plaint B schedule property which belongs to the<\/p>\n
plaintiff is lying on the western side of plaint C schedule property<\/p>\n
and that there is a permanent boundary in between B and C<\/p>\n
schedule properties. It is reported that there is a ”              ”<\/p>\n
lying north-south separating the plaint B and C schedule<\/p>\n
properties. The commissioner also reported that in B schedule<\/p>\n
property rubber is planted and in C schedule there is coconut<\/p>\n
cultivation.     The commissioner with the help of the Taluk<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                  7<\/span><\/p>\n
Surveyor measured the entire property claimed by the parties<\/p>\n
under Ext.A1 partition deed, identified A, B and C schedule<\/p>\n
properties and demarcated B and C schedule properties.        The<\/p>\n
commissioner also reported that plaint B schedule property<\/p>\n
having a total extent of 1.34 acres is lying within separate<\/p>\n
boundary and the C schedule property having an extent of 45<\/p>\n
cents is also lying within well defined boundaries. Since two plots<\/p>\n
belonging to the plaintiff and defendant are lying separately<\/p>\n
under well defined boundaries, it is reported by the commissioner<\/p>\n
that there is no necessity for locating the unregistered small<\/p>\n
portions out of it.      Measurements and demarcation of the<\/p>\n
properties in accordance with the title deeds and on the basis of<\/p>\n
the demarcating boundaries done by the commissioner was not<\/p>\n
objected to by either parties.       Neither the plaintiff nor the<\/p>\n
defendant filed any objection to the commission report and plan.<\/p>\n
So the commission report and plan was accepted. As per the<\/p>\n
commission report and plan the defendant has got possession<\/p>\n
and enjoyment of 45 cents and the plaintiff 1.34 acres. Both<\/p>\n
parties derived title from the very same partition deed. The<\/p>\n
defendant has 42.750 cents of land which is the plaint schedule<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 8<\/span><\/p>\n
property in the earlier suit filed by her. On measurement it is<\/p>\n
found that she is in possession of 45 cents of land. The plaintiff<\/p>\n
is not having any objection in the defendant enjoying 45 cents of<\/p>\n
land as reported by the commissioner and identified in Ext.C1(a)<\/p>\n
plan. Similarly, the commissioner reported and identified in the<\/p>\n
plan that the properties claimed by the plaintiff is lying on the<\/p>\n
western side of C schedule property and the said extent is having<\/p>\n
1.34 acres though in the partition deed the extent is marked as<\/p>\n
1.40 acres. In Ext.A2 assignment deed also the extent stated to<\/p>\n
have purchased by the plaintiff is 1.40 acres of land. In the light<\/p>\n
of the aforesaid facts and reasons, the plaintiff is entitled to a<\/p>\n
decree of declaration of title and possession on the B schedule<\/p>\n
property as identified by the commissioner in Ext.C1(a) plan.<\/p>\n
     9.    The court below dismissed the suit finding that the suit<\/p>\n
is barred by res judicata. The learned Judge had referred to the<\/p>\n
previous suit between the parties. The court below examined<\/p>\n
Ext.B1 judgment, Ext.B2 decree, written statement in O.S.No.298<\/p>\n
of 1989 filed by the present defendant as the plaintiff. I have<\/p>\n
already stated that the property scheduled in the said suit is<\/p>\n
42.750 cents. The said suit was filed for perpetual injunction.<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                    9<\/span><\/p>\n
In that case, a commissioner was deputed and he had marked<\/p>\n
42.750    cents    of    property    (plaint   schedule  property   in<\/p>\n
O.S.No.298\/1998) of the present defendant and 1.30 acres of the<\/p>\n
present plaintiff. The scope of the suit was limited to the prayer<\/p>\n
for granting injunction. The court below formed issues regarding<\/p>\n
the title of the plaintiff in that suit and the court below found that<\/p>\n
the plaintiff in that suit is having title over the plaint schedule<\/p>\n
property. The commissioner in that case demarcated the plaint<\/p>\n
schedule property as per the plan appended to Ext.B2 decree. In<\/p>\n
the plan the extent of land demarcated by the commissioner is as<\/p>\n
per the title deed of the present defendant as 38.800 cents and<\/p>\n
the adjoining property which is shown as disputed property lying<\/p>\n
in between the property of the parties as 6.700 cents.            The<\/p>\n
commissioner measured and identified the properties belonging<\/p>\n
to the plaintiff and defendant in the said suit. The commissioner<\/p>\n
reported that though the present plaintiff claimed 1.40 acres of<\/p>\n
land as per the title deed in that suit, the actual extent is<\/p>\n
1.36.450 acres. The commissioner also separately shown 6.700<\/p>\n
cents as the disputed portion. The civil court in that case held<\/p>\n
that the plaintiff in that suit is entitled to enjoy 38.800 cents plus<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 10<\/span><\/p>\n
6.700 cents identified as part of plaintiff’s property. Thus, the<\/p>\n
plaintiff was given a decree holding that the plaintiff is in<\/p>\n
possession and enjoyment of 45.5 cents of land. The court below<\/p>\n
also held that the dividing line between the properties of the<\/p>\n
plaintiff and defendant is EH line so that the plaintiff is entitled to<\/p>\n
a decree for 45.5 cents of land which includes 6.700 cents which<\/p>\n
is separately shown as the disputed portion.\n<\/p>\n
      10. The commissioner in this suit on inspection found that<\/p>\n
there is a well defined mud boundary wall in between the<\/p>\n
properties of the plaintiff and defendant. The commissioner also<\/p>\n
reported that the defendant who is the plaintiff in the earlier suit<\/p>\n
is in possession and enjoyment of the eastern property and the<\/p>\n
extent is 45 cents.     The commissioner also reported that the<\/p>\n
western property     having an extent of 1.34 acres is in the<\/p>\n
possession and enjoyment of the present plaintiff. Though the<\/p>\n
earlier suit was for injunction the civil court entered a finding<\/p>\n
regarding the title of the property and the present defendant got<\/p>\n
45.5 cents as per the plan prepared by the commissioner. The<\/p>\n
court below also taken note of the report of the commissioner in<\/p>\n
the earlier suit that EH line in the plan is the exact boundary<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 11<\/span><\/p>\n
separating the properties of the plaintiff and defendant and the<\/p>\n
civil court has come to a conclusion that the plaintiff has got title<\/p>\n
over the property as per the plan shown as EH line. The court<\/p>\n
below relied on the decision reported in Sulochana Amma v.<\/p>\n
Narayanan Nair (AIR<\/a> 1994 SC 152). It was held that in a suit<\/p>\n
for injunction when the title is in issue, for the purpose of<\/p>\n
granting injunction that issue directly and substantially arise in<\/p>\n
that suit between the parties and when the same issue is put in<\/p>\n
issue in a later suit based on title between the same parties the<\/p>\n
decree in the injunction suit operates as res judicata. The court<\/p>\n
below also relied on the decision reported in Sreedharan v.<\/p>\n
Unniatha (1985 KLT 181) and held that the suit is barred by res<\/p>\n
judicata.\n<\/p>\n
      11. Learned counsel for the respondent brought to the<\/p>\n
notice of this Court the decisions rendered by the Apex Court in<\/p>\n
K.Ethirajan (Dead by LRs) v. Lakshmi and others<\/a> (2003 (10)<\/p>\n
SCC 578), Gram Panchayath of Naulakha v. Ujagar Singh<\/p>\n
and others<\/a> (2000(7)SCC           543),  Ramdhar Shrivas v.<\/p>\n
Bhagwandas<\/a>        (2005(13)   SCC    1)   and   V.Rajeswari       v.<\/p>\n
T.C.Saravana Bava (2004(1) SCC 551) and contended that the<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                  12<\/span><\/p>\n
matter in issue in this suit is directly and substantially in issue in<\/p>\n
the earlier suit. I have narrated all the facts and circumstances<\/p>\n
leading to filing of the earlier suit and the present suit. I also<\/p>\n
find that the scope and ambit of both suits are entirely different,<\/p>\n
the subject matter is different and therefore the principles laid<\/p>\n
down in the said decisions cannot be applied to the facts of this<\/p>\n
case.\n<\/p>\n
      12. I cannot agree with the conclusions arrived by the<\/p>\n
court below.    The earlier suit was a simple suit for injunction<\/p>\n
simplicitor. The subject matter of the said suit is 42.750 cents<\/p>\n
of land which admittedly belong to the present defendant, who is<\/p>\n
the plaintiff in that suit. It is shown that there was an issue<\/p>\n
regarding the title to the said property. The court held that the<\/p>\n
plaintiff is having title to the property. No decree was passed<\/p>\n
declaring the title of the plaintiff. The court examined the title<\/p>\n
only for the purpose of deciding whether the plaintiff has got<\/p>\n
possession and enjoyment of the plaint schedule property in that<\/p>\n
case. The court examined the claim of the plaintiff in that case,<\/p>\n
perused the title deed and held that the plaintiff in that suit is<\/p>\n
having title in respect of 42.750 cents of land and that he is in<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                  13<\/span><\/p>\n
possession of the plaint schedule property. In fact the plaintiff in<\/p>\n
the present suit did not deny the title of the plaintiff in the earlier<\/p>\n
suit derived from her brother as per Ext.A1 partition deed. The<\/p>\n
court below did not examine the scope of the earlier suit.        The<\/p>\n
subject matter of the suit is plaint C schedule property alone, suit<\/p>\n
for injunction simplicitor and the decree passed is a decree of<\/p>\n
perpetual injunction.     The present suit is      for claiming title,<\/p>\n
possession and for putting up boundary in between the properties<\/p>\n
of the defendant and plaintiff. In this case, A schedule is the<\/p>\n
total extent, B schedule is the property belonging to the plaintiff<\/p>\n
and C schedule is the property belonging to the defendant. The<\/p>\n
plaintiff sought relief in respect of plaint B schedule property<\/p>\n
which is not the subject matter of the earlier suit. In the present<\/p>\n
suit the plaintiff prayed for declaration of title and for putting up<\/p>\n
boundary on the eastern side of his property. The subject matter<\/p>\n
of the earlier suit and the subject matter of the present suit are<\/p>\n
different. In fact, the main prayer and the claim of the plaintiff is<\/p>\n
for declaration of title over his property which is scheduled in the<\/p>\n
plaint. The relief claimed in the present suit is in respect of plaint<\/p>\n
B schedule property which is not the subject matter of the earlier<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                 14<\/span><\/p>\n
suit.  The subject matter of the earlier suit is         C schedule<\/p>\n
property for which no relief is claimed in the present suit. In<\/p>\n
such circumstances, the finding of the court       below that   the<\/p>\n
present suit is barred by res judicata cannot be countenanced at<\/p>\n
all. The principle of res judicata was wrongly applied and the<\/p>\n
decisions cited in the judgment were also wrongly applied by the<\/p>\n
court below. I find that the suit is not barred by res judicata. In<\/p>\n
fact, there is no dispute regarding the title of the plaintiff which<\/p>\n
he obtained under Ext.A2 assignment deed. The only dispute is<\/p>\n
regarding the actual extent of property held by the respective<\/p>\n
parties. On the basis of the permanent boundary dividing B and<\/p>\n
C schedule properties, the commissioner reported that C schedule<\/p>\n
is having 45 cents and B schedule is having 1.34 acres. So long<\/p>\n
as both sides did not object to the report and plan, the report and<\/p>\n
plan has to be accepted and the plaintiff is entitled to a decree as<\/p>\n
prayed for in the suit.    The commissioner also identified the<\/p>\n
dividing line between the properties in Ext.C1(a) plan. The green<\/p>\n
shaded portion is identified as plaint B scheduled property and<\/p>\n
the orange shaded portion is identified as plaint C schedule<\/p>\n
property. The dividing line in between the properties is KNOF.<\/p>\n
A.S.No.612 of 2001<\/p>\n
                                15<\/span><\/p>\n
      In the result, the decree and judgment passed by the court<\/p>\n
below is set aside. The plaintiff is given a decree declaring his<\/p>\n
title and possession over 1.30 acres of registered land and his<\/p>\n
possession over 4 cents of unregistered land. Thus , the plaintiff<\/p>\n
is entitled to declaration of title and possession over plaint B<\/p>\n
schedule property identified by the commissioner in Ext.C1(a)<\/p>\n
plan as ABCDFONKLM.        The plaintiff is allowed to put up a<\/p>\n
permanent boundary on the line KNOF in Ext.C1(a) plan. The<\/p>\n
defendant is restrained by a decree of permanent prohibitory<\/p>\n
injunction from trespassing into and obstructing the plaintiff from<\/p>\n
enjoying the plaint B schedule property. There will be no order<\/p>\n
as to costs. Ext.C1(a) plan shall form part of the decree.<\/p>\n
                                              HARUN-UL-RASHID,
\n                                                    JUDGE.\n<\/p>\n
bkn\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K. Divakaran Pillai vs G. Santhakumari Amma on 15 March, 2010 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 […]<\/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-238497","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK. Divakaran Pillai vs G. 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