{"id":31118,"date":"2011-01-13T00:00:00","date_gmt":"2011-01-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raghavan-vs-sundari-on-13-january-2011"},"modified":"2015-05-21T03:03:31","modified_gmt":"2015-05-20T21:33:31","slug":"raghavan-vs-sundari-on-13-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raghavan-vs-sundari-on-13-january-2011","title":{"rendered":"Raghavan vs Sundari on 13 January, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
Raghavan vs Sundari on 13 January, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 881 of 1997(E)\n\n\n\n1. RAGHAVAN\n                      ...  Petitioner\n\n                        Vs\n\n1. SUNDARI\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.V.BALAKRISHNA IYER (SR.)\n\n                For Respondent  :SRI.C.RAMAN\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :13\/01\/2011\n\n O R D E R\n                         P. BHAVADASAN, J.\n              - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                        S.A. No. 881 of 1997\n             - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n           Dated this the 13th day of January, 2011.\n\n                                JUDGMENT\n<\/pre>\n
          The plaintiff in O.S. 90 of 1989, whose suit was<\/p>\n
dismissed by the trial court and which was confirmed in<\/p>\n
appeal, is the appellant. During the pendency of this<\/p>\n
appeal, he passed away and his legal representatives<\/p>\n
have been brought on the party array as additional<\/p>\n
appellants 2 to 6.\n<\/p>\n
          2.    The suit was one for declaration of <th<\/p>\n
share in plaint A schedule                 property, which had an<\/p>\n
extent of 1.15 acres and is comprised in Re-survey<\/p>\n
No.72\/1. According to the plaintiff, the plaint schedule<\/p>\n
property was obtained by the grand father of the plaintiff<\/p>\n
as per Ext.A1 dated 10.8.1937, which was a registered<\/p>\n
lease deed. The grand father, namely, Koraga, eversince<\/p>\n
Ext.A1, was in absolute possession and enjoyment of the<\/p>\n
property.    He had a son by name Krishnan, who<\/p>\n
S.A.881\/1997.                  2<\/span><\/p>\n
predeceased him. The plaintiff is the son of said Krishnan<\/p>\n
and the first defendant is his widow. Defendants 2 and 4 are<\/p>\n
the children of said Krishnan and the third defendant is the<\/p>\n
husband of the second defendant. Consequent on the death<\/p>\n
of Koraga, according to the plaintiff, the plaint schedule<\/p>\n
property     devolved  on   plaintiff, first defendant   and<\/p>\n
defendants 2 and 4       and they have been in absolute<\/p>\n
possession and enjoyment of the property. On the basis of<\/p>\n
these allegations, the suit was laid for declaration and<\/p>\n
partition.\n<\/p>\n
             3. The suit was mainly contested by the fifth<\/p>\n
defendant. He denied the case set up by the plaintiff and<\/p>\n
contended that the suit was a collusive affair between the<\/p>\n
plaintiff and defendants 1 to 4. According to this defendant,<\/p>\n
the suit property was obtained on chalageni lease by one<\/p>\n
Kalliyani from the Kudlu family and thereafter she was in<\/p>\n
actual possession and enjoyment of the same. She along<\/p>\n
with the land owner of the property filed J Form in S.M.<\/p>\n
proceedings No.15 of 1975 and Kalliyani was issued with a<\/p>\n
S.A.881\/1997.                  3<\/span><\/p>\n
purchase     certificate, namely, Ext.B3   dated    5.6.1976.<\/p>\n
Kalliyani thereafter assigned the suit property to the fifth<\/p>\n
defendant as per Ext.B1 dated 4.10.1980. According to him,<\/p>\n
defendants 1 to 3 were permitted to reside in the house in<\/p>\n
the property and when they refused to vacate, he had to<\/p>\n
institute O.S. 271 of 1981 before the Munsiff’s Court,<\/p>\n
Kasaragod for recovery of possession of the house. That suit<\/p>\n
was decreed.       Appeal filed by defendants 1 to 4 was<\/p>\n
dismissed and so also the second appeal before this court.<\/p>\n
Thus defendants 1 to 4 were bound to surrender the building<\/p>\n
and the property to the fifth defendant. It is in order to get<\/p>\n
over that decree that the present suit has been filed.<\/p>\n
According to the fifth defendant, the suit is without any<\/p>\n
bona fides and is only a delaying tactic adopted by the<\/p>\n
plaintiff and defendants 1 to 4 to protract the execution<\/p>\n
proceedings in O.S. 271 of 1981. Accordingly, he prayed<\/p>\n
that the suit be dismissed.\n<\/p>\n
S.A.881\/1997.                     4<\/span><\/p>\n
             4. It appears that during the pendency of the suit,<\/p>\n
fifth defendant died and his legal heirs were brought on the<\/p>\n
party array as additional defendants 6 to 14.<\/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 and 2 and documents marked as Exts.A1 to A10<\/p>\n
from the side of the plaintiff.       The contesting defendant<\/p>\n
examined D.W.1 and had Exts.B1 to B19 marked. Exts. C1<\/p>\n
and C2 are the commission report and plan.<\/p>\n
             6. The trial court found the case set up by the fifth<\/p>\n
defendant to be true and was of the opinion that the<\/p>\n
judgment and decree in O.S. 271 of 1981 will be binding on<\/p>\n
the plaintiff also. According to the trial court, the plaintiff in<\/p>\n
this suit has raised a similar claim as that of defendants 1 to<\/p>\n
4 in O.S. 271 of 1981 and both the plaintiff and defendants 1<\/p>\n
to 4 were setting up title on the basis of the             same<\/p>\n
document. The suit was accordingly dismissed. The matter<\/p>\n
was carried in appeal as A.S. 32 of 1995 before the District<\/p>\n
Court, Kasaragod.        The lower appellate court, after an<\/p>\n
S.A.881\/1997.                  5<\/span><\/p>\n
elaborate consideration of the materials before it, concurred<\/p>\n
with the trial court and dismissed the appeal. Hence this<\/p>\n
Second Appeal.\n<\/p>\n
             7.  Notice has been issued on the following<\/p>\n
substantial questions of law:\n<\/p>\n
      “1. Is there not a presumption in favour of Ext.A1<\/p>\n
      document dated 10.8.1937, by virtue of the<\/p>\n
      provisions contained under Section 90 of the<\/p>\n
      Indian Evidence Act and therefore was not the<\/p>\n
      said document and the rights thereunder liable to<\/p>\n
      be upheld.\n<\/p><\/blockquote>\n
      2.    In the absence of any challenge to Ext.A1<\/p>\n
      either in the pleadings or by any other process<\/p>\n
      known to law, was not Ext.A1 and the rights<\/p>\n
      thereunder liable to be upheld.\n<\/p><\/blockquote>\n
      3. Is not the impugned decision vitiated by reason<\/p>\n
      of misreading of the evidence and other materials<\/p>\n
      and also by reason of a totally erroneous<\/p>\n
      appreciation of the evidence available in the case.<\/p>\n<\/blockquote>\n
      4. Can the right of a party to an item of property<\/p>\n
      be negatived applying principles of res-judicata,<\/p>\n
      when admittedly he was not a party to the<\/p>\n
S.A.881\/1997.                   6<\/span><\/p>\n
      proceedings on the basis of which such a plea is<\/p>\n
      raised.\n<\/p><\/blockquote>\n
      5. Whether under the facts and circumstances of<\/p>\n
      the case, the plea of the plaintiff is barred by the<\/p>\n
      principles of res-judicata.\n<\/p><\/blockquote>\n
      6.     Is a certificate of purchase or related<\/p>\n
      proceedings to which the plaintiff is not a party,<\/p>\n
      binding on him.\n<\/p><\/blockquote>\n
      7. Is not the impugned decision vitiated by reason<\/p>\n
      of non compliance with the requirements of<\/p>\n
      Section 125(3) of the Kerala Land Reforms Act.<\/p>\n<\/blockquote>\n
      8.     Whether the courts below       were right in<\/p>\n
      entering a finding regarding the tenancy claim of<\/p>\n
      deceased Koraga vis-a-vis the claim of Kallyani,<\/p>\n
      without a reference to the Land Tribunal under<\/p>\n
      Section 125(3) of the Kerala Land Reforms Act.<\/p>\n<\/blockquote>\n
      9.     Whether the court below has properly<\/p>\n
      appreciated and applied the provisions contained<\/p>\n
      in Article 58 of the Limitation Act.\n<\/p><\/blockquote>\n
      10.    When admittedly the plaintiff is an heir of<\/p>\n
      deceased Koraga to whom the property belonged<\/p>\n
      by virtue of Ext.A1, when does the period of<\/p>\n
      limitation for him to claim partition commence<\/p>\n
      and is not a suit filed within 3 years of the refusal<\/p>\n
S.A.881\/1997.                   7<\/span><\/p>\n
      to accede to the claim partition made by the<\/p>\n
      plaintiff, within time.\n<\/p><\/blockquote>\n
      11. When the plaintiff is admittedly a legal heir of<\/p>\n
      deceased Koraga, is not the suit filed within 3<\/p>\n
      years of 1.8.1989, viz, the date on which the<\/p>\n
      demand for partition was refused, within time.<\/p>\n<\/blockquote>\n
      12. Whether under the facts and circumstances,<\/p>\n
      the courts below were right in dismissing the suit.”<\/p>\n<\/blockquote>\n
             8. Learned counsel appearing for the appellant<\/p>\n
pointed out that       the courts below were not justified in<\/p>\n
coming to the conclusion that the judgment and decree in<\/p>\n
O.S. 271 of 1981 are binding on the plaintiff also. Attention<\/p>\n
was drawn to the fact that in one portion of the judgment<\/p>\n
the trial court observed that the property covered by Exts.A1<\/p>\n
and B1 are one and the same.             In another portion,<\/p>\n
observation      is otherwise.    The lower appellate court<\/p>\n
observed that Ext.A1 relates to a different property. It was<\/p>\n
pointed out that the         lower appellate court had also<\/p>\n
observed that the property covered by Exts.A1 and B1 is<\/p>\n
different. This is contrary to the commission report, which<\/p>\n
has not been set aside. If the property covered by Exts.A1<\/p>\n
S.A.881\/1997.                     8<\/span><\/p>\n
and B1 are the same, context of the case changes and it has<\/p>\n
a material bearing on the issue involved in the case. It is<\/p>\n
therefore contended that the judgments and decrees of the<\/p>\n
courts below are not in accordance with law.<\/p><\/blockquote>\n
             9. It is seen that both the courts below have taken<\/p>\n
aid of Section 11 Explanation VI to hold that the plaintiff is<\/p>\n
bound by the decree in O.S.271 of 1981. The said provision<\/p>\n
reads as follows:\n<\/p>\n
             “11. Res judicata.- No Court shall try any<\/p>\n
      suit or issue in which the matter directly and<\/p>\n
      substantially in issue has been directly and<\/p>\n
      substantially in issue in a former suit between the<\/p>\n
      same parties, or between parties under whom<\/p>\n
      they or any of them claim, litigating under the<\/p>\n
      same title, in a Court competent to try such<\/p>\n
      subsequent suit or the suit in which such issue has<\/p>\n
      been subsequently raised, and has been heard<\/p>\n
      and finally decided by such Court.\n<\/p><\/blockquote>\n
      Explanation VI. Where persons litigate bona fide<\/p>\n
      in respect of a public right or of a private right<\/p>\n
      claimed in common for themselves and others, all<\/p>\n
      persons interested in such right shall, for the<\/p>\n
S.A.881\/1997.                   9<\/span><\/p>\n
      purposes of this section, be deemed to claim<\/p>\n
      under the persons so litigating.”\n<\/p><\/blockquote>\n
             10. A reading of the above provision shows that<\/p>\n
the essential condition necessary to attract the above<\/p>\n
provision is that the interest of the person concerned had<\/p>\n
really been represented by others in another suit. It must be<\/p>\n
shown that the interest of the person concerned was looked<\/p>\n
after in a bona fide manner.       If there is any conflict of<\/p>\n
interest between the person concerned and those who were<\/p>\n
parties in the earlier litigation, then the section has no<\/p>\n
application. So is the case when it is proved that there was<\/p>\n
collusion or fraud in the earlier litigation.   Same is the<\/p>\n
position if it is shown that there has been negligence in the<\/p>\n
earlier litigation or that there was mala fides on the part of<\/p>\n
the person who had set up title, which was common to the<\/p>\n
person concerned also.<\/p><\/blockquote>\n
             11.  It cannot be disputed that the properties<\/p>\n
involved in O.S.271 of 1981 and the present suit are one and<\/p>\n
the same.      It may not be true to say that the property<\/p>\n
S.A.881\/1997.                   10<\/span><\/p>\n
covered by Exts.A1 and B1 are not same. The commissioner<\/p>\n
has categorically stated that the properties are identical and<\/p>\n
as rightly pointed out by the learned counsel for the<\/p>\n
appellants, commission report has not been set aside.<\/p>\n
             12. True, the plaintiff herein was not a party to<\/p>\n
O.S.271 of 1981. In O.S.271 of 1981, defendants 1 to 4 in<\/p>\n
this suit has set up title on the basis of same document as is<\/p>\n
now done by the plaintiff and had contested the suit. It was<\/p>\n
found that the plaintiff’s case in O.S. 271 of 1981 was true<\/p>\n
and a decree was granted in his favour. It was confirmed in<\/p>\n
appeal also.    That decree has become final.      It is not in<\/p>\n
dispute that the title set up by the plaintiff in the present<\/p>\n
suit is identical to the title set up by defendants 1 to 4 in<\/p>\n
O.S.271 of 1981. Even though the plaintiff tried to take the<\/p>\n
stand that he was not aware of O.S.271 of 1981, both the<\/p>\n
courts below have found that the evidence is clear to the<\/p>\n
effect that he was fully aware of the proceedings and he<\/p>\n
stood by and watched the same. There is nothing to show<\/p>\n
that there was any fraud played by defendants 1 to 4 in the<\/p>\n
S.A.881\/1997.                 11<\/span><\/p>\n
earlier suit or there was any lack of bona fide contest in the<\/p>\n
earlier suit. There is nothing to show that there was no fair<\/p>\n
and just trial in O.S.271 of 1981. Ext.B19, which is the copy<\/p>\n
of the deposition of the plaintiff in this suit in S.M.15 of 1975<\/p>\n
would clearly reveal that he was aware of the pendency of<\/p>\n
O.S.271 of 1981 instituted by the fifth defendant herein<\/p>\n
against defendants 1 to 4. It is also interesting to note that<\/p>\n
the S.M. proceedings, in which purchase certificate was<\/p>\n
issued to Kalliyani, was unsuccessfully challenged             by<\/p>\n
defendants 1 to 4.\n<\/p>\n
             13.  It is true that the fifth defendant, who<\/p>\n
instituted O.S. 271 of 1981 had not made the plaintiff herein<\/p>\n
a party to the suit.   But one has to appreciate the cause of<\/p>\n
action in the suit. The case of the plaintiff in O.S.271 of<\/p>\n
1981 was that he had permitted defendants 1 to 4 to reside<\/p>\n
in the house and when they refused to vacate the same he<\/p>\n
had instituted the suit.    Defendants 1 to 4 then set up<\/p>\n
common title in the suit property, which is similar to the title<\/p>\n
set up in the present suit and tried to establish the same. It<\/p>\n
S.A.881\/1997.                   12<\/span><\/p>\n
could not therefore be said that the omission to array the<\/p>\n
plaintiff herein as a defendant in O.S.271 of 1981 was<\/p>\n
deliberate and with ulterior motive.       A perusal of the<\/p>\n
proceedings in O.S.271 of 1981 would clearly show that the<\/p>\n
contest was severe and defendants 1 to 4 in the said suit<\/p>\n
had very effectively contested the suit. A reading of Exts.<\/p>\n
B13 to B15 will leave one in no doubt in that regard.<\/p>\n
             14. There is nothing to show that there is any<\/p>\n
conflict of interest between defendants 1 to 4 and the<\/p>\n
plaintiff herein.   In fact the evidence is to the contrary.<\/p>\n
There is nothing to show that O.S. 271 of 1981 was a<\/p>\n
collusive suit in order to defeat the rights of the plaintiff in<\/p>\n
the present suit. The courts below have referred to several<\/p>\n
decisions on this aspect and it is unnecessary to repeat<\/p>\n
them.\n<\/p>\n
             15. It is trite that there may be circumstances<\/p>\n
when a person may be bound by the decree in a suit even<\/p>\n
though he may not be eo nominee a party to the same. One<\/p>\n
such situation is covered by Section 11 Explanation 6. In<\/p>\n
S.A.881\/1997.                    13<\/span><\/p>\n
such a case, the earlier decision operates as res judicata in a<\/p>\n
subsequent suit. Of course, the earlier suit must be a bona<\/p>\n
fide one and must have been tried fairly and justly.<\/p>\n
              16. At any rate, even assuming that the decision<\/p>\n
in O.S.271 of 1981 may not act as res judicata      as     such,<\/p>\n
still it will have considerable impact on the present suit.<\/p>\n
              17. One cannot omit to note that Kallyani, the<\/p>\n
predecessor in interest of the fifth defendant had obtained<\/p>\n
purchase certificate in respect of the property. As already<\/p>\n
noticed, the authority under the Land Reforms Act had come<\/p>\n
to the conclusion that defendants 1, 2 and 4 had no manner<\/p>\n
of right over the suit property. That was also the finding in<\/p>\n
O.S. 271 of 1981.\n<\/p>\n
              18. On a re-evaluation of the evidence, it can be<\/p>\n
easily seen that the attempt of the plaintiff in the present<\/p>\n
suit is only to protract and delay the execution proceedings<\/p>\n
in O.S. 271 of 1981 as rightly pointed out by the fifth<\/p>\n
respondent in the suit. Defendants 1 to 4, who had set up<\/p>\n
identical title as that of the plaintiff in the present suit in<\/p>\n
S.A.881\/1997.                  14<\/span><\/p>\n
O.S.271 of 1981 and had failed to establish the same. The<\/p>\n
plaintiff, who sets up an identical claim has necessarily to be<\/p>\n
bound by the decision in O.S. 271 of 1981.\n<\/p>\n
             Both the courts below were perfectly justified in<\/p>\n
holding against the plaintiff. No question of law, much less<\/p>\n
any substantial question of law arises for consideration in<\/p>\n
this appeal.      This appeal is without merits and it is<\/p>\n
accordingly dismissed.     Parties will suffer their respective<\/p>\n
costs before this court.\n<\/p>\n<\/p>\n
                                            P. BHAVADASAN,
\n                                                JUDGE<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Raghavan vs Sundari on 13 January, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 881 of 1997(E) 1. RAGHAVAN … Petitioner Vs 1. SUNDARI … Respondent For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.) For Respondent :SRI.C.RAMAN The Hon’ble MR. Justice P.BHAVADASAN Dated :13\/01\/2011 O R D E R P. BHAVADASAN, J. – […]<\/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-31118","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRaghavan vs Sundari on 13 January, 2011 - 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\/raghavan-vs-sundari-on-13-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raghavan vs Sundari on 13 January, 2011 - 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