Kerala High Court
Nujumudeen vs Sadanandan on 5 July, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THURSDAY, THE 9TH DAY OF AUGUST 2012/18TH SRAVANA 1934
CRP.No. 645 of 2010 ( )
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OS.162/2008 of MUNSIFF COURT,KAYAMKULAM
REVISION PETITIONER(S):
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NUJUMUDEEN,
S/O.USMANKUTTY,
ALUMOOTTIL HOUSE, CHERAVALLI MURI,
KAYAMKULAM P.O.
BY ADV. SRI.S.JAMES VINCENT
RESPONDENT(S):
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1. SADANANDAN,
S/O.KUNJU PANICKER,
PANAYIL VEEDU, NAMBARUVILAKOM MURI,
KARUNAGAPPALLY VILLAGE & POST.,
PIN-690 518.
2. RAJAMMA,
W/O. KARUNAKARAN, ULLAS BHAVAN,
CHIRAKKADAVOM MURI, KAYAMKULAM VILLAGE & POST.
PIN-690 502.
3. K.SANTHOSH, S/O. KARUNAKARAN -DO-
PIN-690 502.
4. K.ULLAS, S/O. KARUNAKARAN -DO-
PIN-690 502.
5. LISSA,
D/O. RAJAMMA, FROM -DO-
NOW RESIDING AT KALAKKATTU VEETTIL, KONGANDOOR MURI,
AYARKUNNAM VILLAGE, KOTTAYAM DT- 686 001.
R1 BY ADVS. SRI.R.SREEDHARAN NAIR
SMT.SABINA JAYAN
BY ADV. SRI.R.RAJASEKHARAN PILLAI
BY ADV. SMT.MINI.V.A.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
09-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
DG
CRP.No. 645 of 2010 ( )
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-A1: COPY OF THE SALE DEED NO.1556/2007 DATED
05.07.2007 OF THE KAYAMKULAM SUB REGISTRY.
ANNEXURE-A2: COPY OF THE PARTITION DEED 6350/1120 M.E.WITH A
LEGIBLE COPY(COLLECTIVELY).
ANNEXURE-A3: COPY OF THE BUILDING PERMIT NO.BA 538/07-08
DATED 29.01.2008 ISSUED BY KAYAMKULAM
MUNICIPALITY.
ANNEXURE-A3(a): COPY OF THE OCCUPANCY CERTIFICATE DATED
19.05.2008, ASSESSMENT ORDER DATED 21.05.2008
AND PROPERTY TAX RECEIPT 5084 DATED 15.09.2010
ISSUED BY -DO- COLLECTIVELY.
ANNEXURE-A4: COPY OF THE SALE DEED NO.1207 DATED 05.04.1986
OF THE KAYAMKULAM SUB REGISTRY.
ANNEXURE-A5: COPY OF THE SALE DEED NO.235/2003 DATED
29.01.2003 OF -DO-
ANNEXURE-A6: COPY OF THE ROUGH SKETCH OF PLAINT A-SCHEDULE IN
OS.162/08 OF MUNSIFF'S COURT, KAYAMKULAM.
ANNEXURE-A7: COPY OF THE DEPOSITION OF THE 1ST RESPONDENT AS
PW1 IN OS 282/1996 OF MUNSIFF'S COURT,
KALAYMKULAM, WITH A LEGIBLE COPY(COLLECTIVELY)
ANNEXURE-A8: COPY OF THE WRITTEN STATEMENT FILED BY KOYAKUTTY
AS THE 1ST RESPONDENT, ON 30.07.1980, IN
OS.NO.24/1980 OF SUB COURT, MAVELIKARA.
ANNEXURE-A9: COPY OF THE COMMISSION REPORT FILED BY
SRI.G.RAMAN PILLAI ADVOCATE ON 31.07.1996 IN OS
NO.172/1996 OF THE MUNSIFF'S COURT, KAYAMKULAM.
ANNEXURE-A10: COPY OF THE JUDGMENT DATED 19.03.2005 IN OS
282/1996 OF -DO-.
ANNEXURE-A11: COPY OF THE DECREE DATED 19.03.2005 IN -DO-.
ANNEXURE-A12: COPY OF THE JUDGMENT DATED 29.01.2008 IN AS
86/2005 OF THE DISTRICT COURT, MAVELIKARA.
ANNEXURE-A13: COPY OF THE JUDGMENT DATED 19.03.2008 IN RSA
287/2008 OF THE HONOURABLE HIGH COURT OF KERALA.
ANNEXURE-A14: COPY OF THE PLAINT DATED 20.07.1996 IN
OS.282/1996 OF THE MUNSIFF'S COURT, KAYAMKULAM.
DG
-2-
CRP.No. 645 of 2010 ( )
ANNEXURE-A15: COPY OF THE WRITTEN STATEMENT DATED 11.07.1997
OF DEFENDANTS 1 & 2 IN -DO-.
ANNEXURE-A16: COPY OF THE COMMISSION REPORT DATED 21.03.1996
WITH A ROUGH SKETCH, FILED BY SRI.PHILU MATHEW,
ADVOCATE IN OS.111/1996 OF -DO-.
ANNEXURE-A17: COPY OF THE PLAINT DATED 31.03.2008 IN
OS.162/2008 OF -DO-
ANNEXURE-A18: COPY OF THE WRITTEN STATEMENT DATED 23.05.2006
FILED BY THE REVISION PETITIONER AS THE 5TH
DEFENDANT IN -DO-.
ANNEXURE-A19: COPY OF THE WRITTEN SATEMENT OF RESPONDENTS 2 TO
5 AS DEFS.2TO 5 DATED 30.06.2008 IN -DO-.
ANNEXURE-A20: COPY OF THE JUDGMENT DATED 08.11.1996 IN OP
16305/1996 OF THE HONOURABLE HIGH COURT OF
KERALA.
ANNEXURE-A21: COPY OF THE APPEAL FILED BY THE PLAINTIFF BEFORE
THE GOVERNMENT ON 28.09.1996.
ANNEXURE-A22: COPY OF THE GO(R) 564/97/LAD DATED 07.02.1997.
ANNEXURE-A23: COPY OF THE JUDGMENT DATED 24.02.1997 IN
OP3422/1997 OF THE HONOURABLE HIGH COURT OF
KERALA.
ANNEXURE-A24: COPY OF THE JUDGMENT DATED 19.02.1998 IN WA
927/1997 OF -DO-.
ANNEXURE-A25: COPY OF THE I.A.224/2010 FILED BY THE REVISION
PETITIONER AS THE 5TH DEFENDANT IN O.S.162/2009
OF MUNSIFF'S COURT, KAYAMKULAM.
ANNEXURE-A26: COPY OF THE OBJECTIONS TO I.A.224/2010 FILED BY
THE 1ST RESPONDENT DATED 01.02.2010 AS PLAINTIFF
IN -DO-.
ANNEXURE-A27: COPY OF THE JUDGMENT DATED 15.01.2010 IN WP(C)
3529/2010 OF THE HONOURABLE HIGH COURT OF
KERALA.
RESPONDENT'S EXHIBITS:
ANNEXURE-R1: COPY OF THE I.A 868/2008 FOR INTERIM INJUNCTION,
FILED BY THE PETITIONER ON 31.03.2008, IN
O.S.NO.162/2008, IN THE MUNSIFF'S COURT,
KAYAMKULAM.
DG
-3-
ANNEXURE-R2: COPY OF THE OBJECTIONS FILED BY THE RESPONDENT
HEREIN ON 04.04.2008, IN -DO-
ANNEXURE-R3: COPY OF THE ORDER DATED 11.04.2008 IN
I.A.868/2008 IN O.S.NO.162/2008 IN -DO-.
ANNEXURE-R4: COPY OF THE SALE DEED NO.2119/2009 OF THE
KAYAMKULAM SUB REGISTRY.
ANNEXURE-R5: COPY OF THE BUILDING PERMIT NO.C.3-
(COLLECTIVELY) 11595/10/K,DIS DATED 15.12.2010, WITH THE
APPROVED PLAN.
//TRUE COPY//
P.A TO JUDGE
DG
V.CHITAMBARESH, J.
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C.R.P No.645 Of 2010
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Dated this the 9th day of August , 2012.
O R D E R
Respondents 2, 3 and 4 have not been served in the Civil Revision Petition despite earnest attempts by the revision petitioner. But the counsel for the first respondent/plaintiff has no objection as regards non service of notice on them in this Civil Revision Petition. He contends that respondents 2,3 and 4 have subsequently parted with their rights over the property in favour of the revision petitioner. I am therefore disposing of the Civil Revision Petition on merits.
2. The suit in O.S.No.282/1996 was one for an injunction restraining the defendants from constructing a building obstructing the alleged egress and ingress through the plaint 'A' Schedule property. The suit was dismissed by the trial court and confirmed in appeal and later in Regular Second Appeal by this court. The present suit in O.S.No.162/2008 filed by the very same plaintiff against the successors in interest of the earlier C.R.P.No.645 of 2010 2 defendants is one for a declaration of easement right by necessity over the same property and for consequential injunction.
3. The short point that arises for consideration is as to whether the suit in O.S.No.162/2008 is hit by the principles of constructive res judicata in view of the the provisions engrafted in Explanation IV Section 11 Code of Civil Procedure. The same reads as follows:
Res judicata.- "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
Explanation IV "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
4. The defendants in O.S.No.162/2008 contend that the plea of declaration of easement by necessity ought to have been made a ground of attack in O.S.No.286/1996 in relation to the very same property. The defendants in other words contend that the prayer for declaration of easement should be deemed to have been negatived by implied adjudication applying the principles of C.R.P.No.645 of 2010 3 constructive res judicata. This certainly requires a reference to the pleadings and prayers made in O.S.No.282/1996 and O.S.No.162/2008. The parties should also be permitted to lead evidence as regards the nature of disputes in both the suits and the scope of the liberty granted in RSA No.287/2008 arising out of O.S.No.282/1996.
5. One of the cardinal tests is as to whether this prayer for declaration of easement was available to the plaintiff to be urged in O.S No.282/1996. Further question is when did the cause of action to file O.S.No.162/2009 arise and is it after the disposal of O.S.No.282/1996?. The plaintiff relies on the judgment in Anathula Sudhakar Vs. P.Buchi Reddy (AIR 2008 S.C 2033) whereas the defendants rely on Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas and another (AIR 2008 S.C 2187). Several other decisions are also placed before me to buttress the contentions of either parties.
6. I feel that the bar of res judicata under Explanation IV of Section 11 requires to be considered on the basis of evidence and pleadings. The dispute in this case lies in a very narrow compus revolving around one item of property (C schedule) over which a right of way is claimed. A piecemeal adjudication of the C.R.P.No.645 of 2010 4 issues may not be advisable as even otherwise a protracted trial would be unnecessary to determine the real controversy. I direct the court below to advert to this cardinal issue along with the other issues to be answered in the suit. The defendants are very much entitled to bank on the evidence adduced in O.S.No.282/1996 and contradict the plaintiff with regard to the admissions made therein. I reiterate that the parties are entitled to lead evidence in order to substantiate their respective contentions.
8. The impugned order is set aside and the original petition is disposed as above.
Sd/-
V.CHITAMBARESH, JUDGE //TRUE COPY// P.A TO JUDGE DG