Kerala High Court
Rosamma Stella Florance vs Lazar Nadar Selva Rajan Nadar on 17 December, 2016
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939
RSA.No. 86 of 2017 ()
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AGAINST THE JUDGMENT AND DECREE DATED 17.12.2016 IN AS
290/2010 of ADDITIONAL DISTRICT COURT, NEYYATTINKARA
AGAINST THE JUDGMENT AND DECREE DATED 24.06.2005 IN
OS 206/1994 of I ADDITIONAL MUNSIFF COURT, NEYYATTINKARA
APPELLANT/RESPONDENT/PLAINTIFF:
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ROSAMMA STELLA FLORANCE
(WRONGLY STATED IN THE JUDGMENT AS
ROSAMMA STELLA FLOROUS)
VARUVILA PUTHENVEEDU, KADAVATTARAM DESOM,
NEYYATTINKARA.
BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.MANU SEBASTIAN
SRI.P.J.JOE PAUL
RESPONDENT/APPELLANT/DEFENDANT:
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LAZAR NADAR SELVA RAJAN NADAR,
AVIKUZHI VEEDU, KADAVATTARAM DESOM, NEYYATTINKARA.
BY ADVS. SRI.K.B.PRADEEP [CAVEATOR ADVOCATE]
SMT.J.HARIPRIYA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 20-07-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
DSV/-
[CR]
B. KEMAL PASHA, J.
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R.S.A. No.86 of 2017
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Dated this the 20th day of July, 2017
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ (1) Can a civil court grant leave to file a suit otherwise than under Order XXIII Rule 1(3) CPC?
(2) Is an observation made by a court in the judgment of dismissal that another suit on the same subject matter by the plaintiff will not be barred by res-judicata, valid?
2. Challenging the judgment and decree passed by the Additional District Court, Neyyattinkara in AS No.290/2010, the plaintiff in OS No.206/1994 of the I Additional Munsiff's Court, Neyyattinkara has come up in Second Appeal. Originally, OS No.206/1994 was filed as a : 2 : suit for perpetual injunction and subsequently it was amended by incorporating the relief of declaration of the title and possession of the plaintiff over the plaint schedule property having an extent of 50 cents in Survey No.172/5 of the Kadavattaram Desom. She traces her title through Exts.A1 and A2. Ext.A1 was executed by one Chellan Nadar in favour of the additional 2nd plaintiff. Originally, the present appellant alone was the plaintiff. Later, her mother was impleaded as the additional 2nd plaintiff. The additional 2nd plaintiff had settled the property in favour of the appellant.
3. During the course of the suit, the 2nd additional plaintiff died and no other legal representatives were there to be impleaded. According to the appellant, she is the sole title holder in possession of the plaint schedule property and therefore, she wants to get her title declared. The plaintiff claims that the cause of action of the suit had arisen on 21.03.1994, 22.03.1994 and thereafter, by alleging that the : 3 : defendant had attempted to commit trespass into the plaint schedule property on 21.03.1994 and thereafter.
4. The defendant resisted the suit and filed a written statement as well as additional written statement. It was contended that the suit is not maintainable and that the plaint schedule property is not identifiable. It is contended that no such property as claimed in the plaint schedule is in existence. According to the defendant, there is a total extent of 22 acres and 52 cents of property lying contiguously in survey Nos.172/5, 170/2, 170/5, 172/1, 172/2, 172/3, 172/4 and 174/2. The said property is situated in different planes. The predecessors-in-interest of the plaintiff and the defendant used to possess and enjoy the said property by possessing different planes. They have divided their interests separately and possessed such planes separately through such a partition by conduct. The said partition was approved by the Munsiff's Court, Neyyattinkara as OS No.582/1057 ME.
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5. It is also contended that in case the plaintiff wants to claim any specific right over the property, she ought to have filed a suit for partition of the entire property called 'Kannerthattu' by impleading all the persons, who have interest in the property. The property named 'Kannerthattu' situated in survey No.172/5 had exclusively devolved on Karuman Karuman, Kutty Pakyanathan and Kutty Yacob. Karuman Karuman was entitled to = share, Kutty Pakyanathan was entitled to < share and Kutty Yacob also was entitled to < share. Karuman Karuman or their successors-in-interest have never entered into a partition of the 'Kannerthattu'. Chellan Nadar, who is the Vendor of the additional 2nd plaintiff, along with others were the Vendees in respect of the = share belonged to Karuman Karuman.
6. The successors-in-interest of Karuman Karuman had no right to convey title over a specific plot out of the 'Kannerthattu'. Chellan Nadar himself and his successors-in-interest had in prior suits admitted that any : 5 : specific plots were not allotted to them out of the 'Kannerthattu' and therefore, Chellan Nadar could not have transferred any specific plot to the additional 2nd plaintiff. Therefore, the additional 2nd plaintiff or the appellants have not derived any title or possession over any specific plot of property out of 'Kannerthattu'. The interest of the patta holders in 'Kannerthattu' still remain as oodukoor.
7. Regarding the entire property, there were two civil suits as OS Nos.23/1954 and 21/1954 before the Munsiff's Court, Neyyattinkara. Based on the decisions in the said suits and also based on the decision in OS No.895/1964 of the Munsiff's Court, Neyyattinkara, it is contended that the present suit is barred by res judicata, constructive res judicata and estoppel. When any specific plot has not been devolved on the additional 2nd plaintiff or the appellant, the appellant has no right to claim a relief of declaration of title and possession.
8. The trial court, after recording the evidence, : 6 : decreed the suit in terms of the plaint. Aggrieved by the judgment and decree, the defendant in the suit preferred A.S.No.290/2010 before the Additional District Court, Neyyattinkara. The lower appellate court allowed the appeal with costs, thereby reversing the judgment and decree passed by the trial court. The lower appellate court found that the suit is barred by res-judicata, in view of the decisions in O.S.No.21/1954 and O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara and O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram. Over and above it, the lower appellate court has considered the merits of the matter and found that the plaintiff is not entitled to get a decree as prayed for, on merits also.
9. Heard the learned counsel for the appellant and the learned counsel for the respondent on the question of admission.
10. The learned counsel for the appellant has argued that the issue relating to title was not considered in : 7 : Exhibit-A17 judgment in O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram and therefore, the said judgment will never operate as res-judicata in respect of the present suit. It has been argued that even though the relief of declaration of title, recovery of possession, and partition were sought for in O.S.No.895/1964, the Munsiff's Court, Thiruvananthapuram considered the suit as if it was one for partition alone, without going into the merits of the claims relating to the declaration of title and recovery of possession and therefore, the present suit for declaration of title is not barred by res-judicata. Further, it has been argued that in Exhibit-A17 judgment, the said court had reserved the right of any of the parties to agitate the question regarding title on specific items of properties, in case, any such claims are maintainable.
11. Per contra, the learned counsel for the respondent has severely attacked the maintainability of the appeal, mainly on two grounds. The first ground is that in : 8 : view of the decisions in O.S.No.21/1954 and O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara and Exhibit-A17 judgment in O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram, the present suit is barred by res-judicata. The second ground is that the suit is hopelessly barred by limitation. Over and above the said two grounds, the learned counsel for the respondent has canvassed an argument that in order to sustain a claim for declaration of title, the plaintiff has to prove her title by producing the original Title Deeds. It has been pointed out that instead of producing the original of Exhibit-A1, a certified copy of Exhibit-A1 has been produced. Over and above it, in respect of Exhibit-A2, the plaintiff has produced only a photocopy, which is not admissible in evidence.
12. O.S.No.21/1954 was filed by one Charlse Nadar Appu Nadar and others as plaintiffs, seeking a decree for declaration of title and possession over separate items of property and for partition of the same. Plaintiffs 1 to 3 in the : 9 : said suit had claimed title and possession over 1 Acre and 57 Cents of property out of the plaint schedule property. Plaint A schedule property in the said suit is a total extent of 22 Acres and 52 Cents of property, which includes 7 Acres and 66 Cents in Survey No.172/5. Evidently, the said property includes the plaint schedule property in the present suit. The 2nd plaintiff in the said suit is Charlse Nadar Chellan Nadar, who is none other than the Vendor of Exhibit-A1. It is the admitted case that O.S.No.21/1954 was dismissed and its decision became final. Exhibit-B2 is the attested copy of the plaint in the suit.
13. Similarly, O.S.No.23/1954 was filed by Sri.Zachariah Makshikam Krishnadas Makshikam @ Yesudas and others. Plaintiffs 1 to 3 in O.S.No.21/1954 are defendants 1 to 3 in O.S.No.23/1954. The plaintiffs in O.S.No.23/1954 are also the defendants in O.S.No.21/1954. O.S.No.23/1954 was filed for the declaration of title and possession, and also for partition in respect of the : 10 : properties, which include the plaint schedule property in this suit. Admittedly, the said suit was also dismissed and its decision became final.
14. Thereafter, it seems that O.S.No.895/1964 was filed by Charlse Nadar Chellan Nadar and others against Gnanabharanam Nadar John Nadar and others. That suit was originally filed before the Munsiff's Court, Neyyattinkara, from where, it was transferred to the Munsiff's Court, Thiruvananthapuram. The present defendant was the 37th defendant in the said suit. The said suit was filed for declaration of title as well as partition in respect of properties, which include the plaint schedule property in this suit. Through Exhibit-A17 judgment, the Munsiff's Court, Thiruvananthapurm, dismissed the suit, by finding that it is barred by res-judicata in view of the earlier decisions in O.S.No.21/1954 and O.S.No.23/1954.
15. O.S.No.23/1954 was also filed by the Vendor of Exhibit-A1, for declaration of his title over the properties : 11 : including the plaint schedule property in this suit and some other properties. The plaint schedule property in this suit is part of 7 Acres and 66 Cents of property in Survey No.172/5, covered by Exhibit-B2 suit. When that suit was dismissed, the very same plaintiff could not have filed O.S.No.895/1964. Disregarding the bar of res-judicata, the said suit was filed and once again, he got that suit also dismissed.
16. The argument put forwarded by the learned counsel for the appellant is that the question of title was not considered by the Munsiff's Court, Thiruvananthapuram in O.S.No.895/1964 and what was considered in the said suit was the question of res-judicata alone, in view of the earlier suit for partition. It is true that the Munsiff's Court, Thiruvananthapuram had treated O.S.No.895/1964 also mainly as a suit for partition, even though declaration of title and possession as well as recovery of possession were also sought for in that suit.
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17. It has to be noted that the 1st plaintiff in O.S.No.895/1964 was the 2nd plaintiff in O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara, filed in respect of the very same property. The said suit was one for declaration of his title, possession as well as partition. May be without going through the plaint in the said suit, the Munsiff's Court, Thiruvananthapuram, has found that the said suit was one for partition and in view of the decision in O.S.No.23/1954, the request for partition in O.S.No.895/1964 was barred by res-judicata. In O.S.No.23/1954, the relief for declaration of title and possession was denied. The relief of partition was also denied by finding that the parties had already entered into a partition by conduct and they were in separate possession of each their respective planes of property and therefore, a further partition was not required. It was on that ground, the Munsiff's Court, Thiruvananthapuram, has found that O.S.No.895/1964 could also be treated as one for partition only and in such case, the said suit was barred by : 13 : res-judicata.
18. When the question of title and possession and, also the question of recovery of possession were dealt with by the Munsiff's Court, Neyyattinkara in O.S.No.23/1954 and when those reliefs were denied after the trial of all the issues involved therein, even if the decision in O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram is disregarded, it operates as res-judicata in respect of the present suit.
19. There is no meaning in contending that the issues regarding title were not considered by the Munsiff's Court, Thiruvananthapuram in O.S.No.895/1964 through Exhibit-A17. In Exhibit-A17, the Munsiff's Court, Thiruvananthapuram held that under the cover of a prayer for declaration of title, the plaintiffs practically wanted a decree for partition and they wanted to dislocate the long and continuous possession of the defendants on the basis of partition by course of conduct, which was accepted by the : 14 : decisions in O.S.No.21/1954 and O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara. Therefore, in passing Exhibit-A17 judgment, the Munsiff's Court, Thiruvananthapuram, had considered the judgments in O.S.No.21/1954 and O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara. When the decisions in the said suits were relating to the issues regarding title and possession also, it cannot be said that the said questions were given a go by in Exhibit-A17 by the Munsiff's Court, Thiruvanathapuram.
20. At the same time, for the reasons best known to the learned Munsiff alone, a reservation has been made by observing as follows: "There would not have been any bar of res-judicata if the suit was only one for declaration of title of specific plots belonging to the plaintiffs." It was further observed that "But even the plaintiffs are not sure of the exact plots belonging to them and they are not able to schedule those plots with accuracy." It was further held that "If the plaintiffs want to seek remedy regarding any property : 15 : allotted to their share under the partition arrangement accepted by Exhibit-P15 and Exhibit-D1, this decision will not stand against them." The plaintiff herein cannot be heard to say that she was unaware of the decisions in O.S.No.21/1954 and O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara as well as O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram.
21. In Exhibit-A1 executed by Chellan Nadar in favour of the additional 2nd plaintiff, he has clearly recited regarding the dismissal of O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram, in page No.4 of the document. He had clearly stated in Exhibit-A1 that including the property scheduled in Exhibit-A1 and other properties, he had filed O.S.No.895/1964 before the Munsiff's Court, Thiruvananthapuram and the said suit was dismissed. It seems that he had permitted his Vendee to continue with the litigation, in case it was required.
22. Therefore, it is evident that the plaintiff as well as : 16 : her mother was aware of the said suit as is evident from Exhibit-A1. In O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara, Chellan Nadar and plaintiffs 1 and 3 therein had claimed absolute title and possession over the plaint A schedule property in the said suit, which included the entire 7 Acres and 66 Cents in Survey No.172/5. The said suit was dismissed. The partition sought for in the said suit was also denied on the ground that the parties were in separate possession of different planes of property as an arrangement among them through a partition by conduct. Again, the very same reliefs were sought for in O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram. The same were also denied. When the question of title of the Vendor of Exhibit-A1 was considered on merits in O.S.No.23/1954, it cannot be said that the said questions are again remaining open. As rightly pointed out by the lower appellate court, the present suit filed by the plaintiff as a Vendee of a portion of the property : 17 : from Chellan Nadar, is barred by res-judicata in view of the earlier decisions in O.S.No.21/1954 and O.S.No.23/1954 of the Munsiff's Court, Neyyattinkara and O.S.No.895/1964 of the Munsiff's Court, Thiruvananthapuram.
23. According to the learned counsel for the appellant, the Munsiff's Court, Thiruvananthapuram had observed in Exhibit-A17 that in case of a relief being claimed on a specified property, Exhibit-A17 would not stand in the way of such a suit. No court can give such a reservation. When a statute confers a right, it cannot be taken away by a judicial decision by any court. A civil court cannot grant leave to file a suit otherwise than under Order XXIII Rule 1(3) CPC. In any circumstance other than the one contemplated under Order XXIII Rule 1(3) CPC., on a dismissal of the suit, no civil court can grant leave to the plaintiff to file a fresh suit. A reservation made by a court in the judgement of dismissal that another suit on the same subject matter by the plaintiff will not be barred by : 18 : res-judicata, is of no value at all. If the law permits, the plaintiff may file another suit, but not on the basis of the observations made by the same court or a superior court.
24. In Shiv Kumar Sharma v. Santosh Kumari [AIR 2008 SC 171], it was held in paragraph 23 as follows:
"We, therefore, are of the opinion that the High Court was not correct in framing the additional issues of its own which did not arise for consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in terms of Order XLI, Rule 31 of the Code. On the pleadings of the parties and in view of the submissions made, no such question arose for its consideration. In any event, if a second suit was maintainable in terms of Order II, Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit : 19 : but not on the basis of observations made by a superior court."
25. In Dadu Dayalu Mahasabha, Jaipur v. Mahant Ram Niwas & Anr. [AIR 2008 SC 2187], in a case wherein the Apex Court had observed that the plaintiff may file a suit for possession, it was held that it would not take away the right of the adverse party to challenge the suit on the ground of res judicata.
26. In paragraph 19 of Dadu Dayalu Mahasabha (supra) it was held:
"The judgment of a court, it is trite, should not be interpreted as a statute. The meaning of the words used in a judgment must be found out on the backdrop of the fact of each case. The Court while passing a judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior Court is not binding. What would be binding is the ratio of the : 20 : decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case."
27. The vendor of Ext.A1 had in principle accepted the position that he had no separate possession of the properties. Even according to him, the properties were not divided by metes and bounds and therefore, he had to seek partition and separate possession through O.S.No.895/1964. When that suit was dismissed, his position was not altered. Therefore, he could not claim that he had separate possession of any piece of land out of the property sought to be partitioned. When he had conveyed a piece of land through Ext.A1 to the additional second plaintiff, it could only be treated as transfer of the oodukoor right. In such case, the vendee cannot claim any separate possession or title over such a piece of land. Therefore, the present claim in the suit forwarded by the plaintiff is barred by the principle of estoppel also. She is estopped from : 21 : contending that she has separate possession and enjoyment of 50 cents of land involved in the suit, when her vendor had a specific case that he had no separate possession and enjoyment of the said piece of land, in the suit for partition.
28. Regarding the question of limitation, the learned counsel for the respondent has raised that question even though a claim of any adverse possession has not been set up as a contention in the written statement. Even though the defendant is not claiming any right by way of adverse possession over the property, it has been pointed out that the plaint claim is barred by limitation. Whether the defendant is in possession of the property or not, the defendant can well set up a defence that the suit is barred by limitation. Through Ext.A1, the plaintiffs were aware of the dismissal of O.S.No.895/1964. The vendor in Ext.A1 had cautioned her to get herself impleaded in the suit or to proceed with the suit further, by stating that the said suit : 22 : happened to be dismissed. Ext.A1 was executed on 15.05.1967. The vendor, even though, had lost the suit for declaration of title and possession and for partition, he might have thought of setting up an independent claim through the vendee by transferring the plaint schedule property through Ext.A1. In such a case, instead of filing the suit within three years as contemplated under Article 58 of the Limitation Act, 1963, the plaintiff has chosen to file the suit in the year 1994 only. As per Article 58 of the Limitation Act, 1963, such a suit for declaration ought to have been filed within three years from the date of which the right to sue first accrues. No doubt, such a right had accrued on the date of dismissal of the suit, as far as the vendor of the plaintiff was concerned, and on the date of execution of Ext.A1 as far as the plaintiff was concerned since she was made known about the dismissal of the suit through Ext.A1.
29. Ext.A17 was not challenged and it attained finality. Ext.A17 was dated 05.01.1967. From the discussions made : 23 : above, it can be seen that the trial court had committed a grave error in decreeing the suit, without applying its mind on the aforesaid questions of law. The lower appellate court has carefully considered all the matters in its correct perspective and had arrived at a correct conclusion. There is absolutely nothing to interfere with the impugned judgment and decree passed by the lower appellate court. Any substantial question of law does not arise in this appeal. Matters being so, this Second Appeal is not maintainable and is only to be dismissed, and I do so.
In the result, this RSA is dismissed. There is no order as to costs. All pending interlocutory applications in this appeal are closed.
Sd/-
(B.KEMAL PASHA, JUDGE) ul/aks/dsv/24/07 // True Copy // PS to Judge