Kerala High Court
* 1. Narayanan Kochu Nanoo vs * 1. Velayudhan Raghavan (Died) on 26 September, 2018
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 3RD ASWINA, 1940
SA.No. 15 of 1999
[AGAINST THE JUDGMENT AND DECREE DATED 11.12.1997 IN AS 13/1993 OF ADDL.DISTRICT COURT-I,
MAVELIKKARA]
[AGAINST THE JUDGMENT AND DECREE DATED 31.08.1992 IN OS 78/1988 OF MUNSIFF COURT, HARIPAD]
APPELLANT/APPELLANT/PLAINTIFF:
* 1. NARAYANAN KOCHU NANOO, (DIED)
THUNDIL KIZHAKKETHIL FROM KAITHAVANA,
CHINGOLI MURI, CHINGOLI VILLAGE.
LEGAL REPRESENTATIVES OF THE FIRST APPELLANT IMPLEADED AS ADDITIONAL APPELLANTS 2 &3
ADDL. 2. KUNJUMON, S/O.LATE NARAYANAN, KOCHU NANOO,
THUNDILKISHAKKETHIL, KAITHAVANAM CHINGOLIMURI, CHINGOLI VILLAGE
ADDL. 3. VIJAYAN, S/O. LATE NARAYANAN KOCU NANOO,
THUNDIKIZHAKKETHIL, KAITHAVANAM CHINGOLI MURI,
CHINGOLI VILLAGE.
[THE LEGAL HEIRS OF DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDITIONAL
APPELLANTS 2 AND 3 AS PER ORDER DATED 18.8.2017 IN I.A. NO. 2764/2009]
BY ADVS. SHRI. G. GOPAKUMAR
SHRI. N. NAGARESH
SMT. BINEETHA GOPAKUMAR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
* 1. VELAYUDHAN RAGHAVAN (DIED)
KOIKKATHARA VEETIL, CHINGOLI MURI,
CHINGOLI VILLAGE.
2. RADHAVAN RAVI OF -DO- -DO-
3. VELAYUDHAN HARI OF -DO- -DO-
LEGAL HEIRS OF DECEASED FIRST RESPONDENT IMPLEADED AS ADDITIONAL RESPONDENTS 4
AND 5
S.A. No. 15 of 1999 2
ADDL.4. KUNJI PILLAI, KOIKKATHARA VEETTIL,
CHINGOLI P.O.,
KARTHIGAPPALLI.
ADDL.5. R. RAVI, KOIKKATHARA VEETTIL,
CHINGOLI P.O., KARTHIGAPPALLI.
[THE LEAGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT ARE IMPLEADED AS PER
ORDER DATED 13.7.2018 IN I.A. NO. 883 OF 2004]
BY ADV. SHRI. P.R. VENKATESH FOR R2,R3 AND ADDL. R4
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.09.2018, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in a suit for declaration of title and recovery of possession is the appellant in the second appeal. The case of the plaintiff in the plaint was that the plaint schedule property was obtained by him and his mother in terms of Ext.A1 sale deed in the year 1962 and that the defendants, who hold the property on the south of the plaint schedule property, have trespassed into the plaint schedule property. The defendants contested the suit contending that the plaint schedule property is a part of their property. There was an earlier suit by the plaintiff against the defendants for injunction in respect of the plaint schedule property. S.A. No. 15 of 1999 3 That suit was dismissed by the trial court holding that the defendants are in possession of the property and the decision therein has been confirmed in appeal. In the light of the decision in the earlier suit, the defendants have also contended that the decision in the earlier suit would operate as res judicata against the plaintiff in the present suit. The trial court found that the decision in the earlier suit will operate as res judicata and consequently, dismissed the suit and the said decision has been confirmed in appeal. As noted, the plaintiff is aggrieved by the said decisions of the courts below.
2. During the pendency of the second appeal, the appellant, the plaintiff, and the first respondent, the first defendant, died and their legal representatives have come on record in the array of parties in the second appeal.
3. Heard the learned counsel for the appellants as also the learned counsel for the respondents.
4. Having heard the learned counsel for the appellants and the learned counsel for the respondents, the following substantial question of law is framed for decision in the second appeal:
"Is the finding of the courts below that the suit is barred by res judicata sustainable in law?"S.A. No. 15 of 1999 4
5. It is beyond dispute that the earlier suit was one for injunction simplicitor instituted paying court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act, 1959. It is trite that in a suit for injunction, the only issue that arises for consideration is as to the possession of the suit property. Decision in such a suit does not and cannot preclude the plaintiff from instituting a subsequent suit based on title unless the issue based on title was directly and substantially in issue in the former suit. It is seen that though the earlier suit was one only for injunction, the court has considered the question of title as well in the said suit and it is in the said circumstances that the courts below have taken the view that the present suit on title is barred by res judicata. I am unable to agree with the said view of the courts below. True, the courts have considered the question of title also in the earlier suit, but the same in the facts of that case was only collateral and incidental. Such a collateral and incidental adjudication as to the title in suits instituted for injunction, according to me, would not operate as res judicata in subsequent suits based on title. The view taken by the courts below that the present suit is barred by res judicata is, therefore, unsustainable. The question of law formulated for decision is thus answered in favour of the appellants. S.A. No. 15 of 1999 5
In the result, the second appeal is allowed, the impugned judgments of the courts below are set aside and the suit is remitted for fresh disposal in accordance with law.
Sd/-
P.B.SURESH KUMAR, JUDGE PKK