Kerala High Court
Madhavi Amma Bhavani Amma And Ors. vs Velu Pillai And Ors. on 26 September, 1989
Equivalent citations: AIR1990KER144, AIR 1990 KERALA 144
JUDGMENT
1. Defendants are the appellants. Plaintiff filed the suit for declaration of title, for partition and recovery of possession. The trial Court granted a decree declaring that the plaintiff is the sole heir of deceased Thankappan Pillai and that as such he is entitled to inherit the properties of the latter and for recovery of possession of items 2 to 5 of A schedule from the defendants and also for partition and separate possession of half of plaint B schedule properties. The plaintiff was also granted mesne profits. The suit and O.P. 35 of 1974 were jointly tried. In O.P. 33 of 1974 the trial Court held that the plaintiff is entitled to the grant of succession certificate.
2. As the plaintiff (respondent) died his legal representatives were impleaded as additional respondents 2 to 6.
3. Learned counsel for the appellants (defendants) contended that by the judgment in S.A. 452 of 1979 this Court remanded the case to the lower appellate Court with certain directions and while disposing of the appeals the lower appellate Court did not afford sufficient opportunity to the appellants to adduce necessary evidence. This Court in S.A. 452 of 1979 directed the lower appellate Court to consider the appeals afresh in accordance with law and observed that the judgment in the Second Appeal should not preclude the defendants (appellants) from relying on any material and/or any evidence available to rebut the presumption under Section 112 of the Evidence Act.
4. It is contended by the counsel that the petition filed by the appellants as I. A. 1084 of 1982 seeking permission to adduce evidence to rebut the presumption under Section 112 of the Evidence Act was dismissed by the Disrict Judge on the ground that details of the evidence have not been mentioned in the petition and that the defendants have not established a case to invoke Order 41, Rule 27 of the Civil Procedure Code. Counsel therefore submitted that a further remand to the lower appellate Court has become necessary.
5. Counsel for the respondents (plaintiff) submitted that as the decision in O.P. 35 of 1974 by the trial Court which has been confirmed by the lower appellate Court has not been challenged by filing civil revision petition before this Court it has become final and it will operate as res judicata.
6. Plaintiff claims the suit properties as the sole heir of Thankappan Pillai, who according to him is his full brother. On that basis the plaintiff filed O.P. 33 of 1974 under Section 372 of the Indian Succession Act for succession certificate in respect of the suit properties. As the case relates to the estate of Thankappan Pillai who died as a bachelor and as the plaintiff claims to be his full brother he can succeed only if that claim is established. In the O.P. the trial Court held that he is entitled to get a succession certificate. Defendants contend that the original plaintiff was only a uterine brother of Thankappan Pillai.
7. The question to be considered is as to whether the decision in O.P. 33 of 1974 which has become final would operate as res judicata in the present Second Appeal. As the appeal filed against the decision in O.P. 33 of 1974 stood dismissed there cannot be any two opinions that the plaintiff is entitled to get the succession certificate.
8. The decision in O.P. 33 of 1974 conclusively shows that the plaintiff is the legal heir of Thankappan Pillai. In a case where two proceedings were jointly tried and decisions were reached in both the proceedings and when appeal has been filed against only one of the proceedings the decision in other proceedings will operate as res judicata in the proceedings taken on-appeal. In Janardhan Pillai v. Kochunarayani Amma Pillai v. ? Amma, 1976 Ker LT 279 a Full Bench of this Court held that in cases where two or more suits between the same parties relating substantially as to the same matter are decided and only one of them is challenged by way of appeal it cannot be said that the decisions are simultaneous and hence there can be no bar of res judicata. In other words, if the party takes up in appeal only one of the decisions the other decision becomes final. When the present second appeal is taken up for hearing the indisputable position is that the decision in O.P. 33 of 1974 has become final as it has not been challenged and so that decision would operate as res Judicata. As the question whether the plea of res judicata is available has to be decided with reference to the time when the Second Appeal is taken up for consideration and if the decision in O.P. 33 of 1974 has become final between the parties and the question is directly and substantially the same the decision in O.P. 33 of 1974 would operate as res judicata barring a fresh decision by this Court in Second Appeal. That being the position it has to be held that the Second Appeal is not maintainable. Remand to the trial Court as urged by the appellants is not justified.
9. The Second Appeal is dismissed with no order as to costs.