Kerala High Court
Kadapurath Illam Khalid vs Beemapura Palamkakkada Sulekha And ... on 5 September, 1986
Equivalent citations: AIR1986KER251, AIR 1986 KERALA 251, (1986) KER LT 1113
Bench: K.S. Paripoornan, K.T. Thomas
JUDGMENT Radhakrishna Menon, J.
1. We are seized of the appeal, having been referred to us by a Division Bench.
2. The short question arising for consideration is whether Ext. B20 judgment dated 22-3-1971 operated as res judicata, debarring the appellant from maintaining the suit, O. S. No. 6 of 1975 in the Court of the Subordinate Judge, Lakshadweep, Kavarathi from which the above appeal arises. The suit is by the Karanavan of Kadapurath Illom Tharwad (for short the tharwad) on his behalf and on behalf of tharwad for recovery of possession of plaint A schedule property with mesne profits past and future, and for a permanent injunction restraining defendants 1 to 10 from trespassing upon plaint-B schedule property and plucking the coconuts from the trees standing thereon or alternatively, if it is found that the B schedule property in its entirety or any portion thereof is in the possession of defendants 1 to 10, to have the same recovered with mesne profits.
3. A resume of facts relevant lies in a narrow compass. The plaintiff's tharwad, it is alleged, is the reversionary heir of Palamkakkada tharwad of which the father of defendants 1 to 5 was the sole surviving member. The tharwad rests the above claim on Attaladakam right, a customary right said to be enjoyed by the tharwad.
4. The father of defendants 1 to 5, Muhammed, executed a gift deed Ext. A25 dated 24-8-1961 bequeathing his rights over the plaint properties to his children defendants 1 to 5, the validity of which was directly challenged in O. S, No. 47 of 1969 disposing of which, Ext. B20 judgment was delivered. The said suit was instituted by the plaintiff (appellant herein) as the power of attorney holder of the Karanavan and on behalf of the tharwad. In the said suit the Court settled numerous issues including the following :
(1) Whether by reason of the judgment in C. S. 50/1923 of Kavaratti Amin's Court, the defendant is barred by res judicata from contending that the suit properties belong to his tharwad exclusively and not plaintiff's tharwad?
(2) Whether the gift deed dated 24-8-1961 executed by the defendant is valid and binding upon the plaintiff?
(3) Whether the suit as brought is maintainable?
(4) Whether the plaintiff has any right to the suit properties?
(5) Whether the plaintiff has a subsisting right of attaladakkam to the properties mentioned in the plaint?
5. Regarding the first issue the Court found that the decision in C.S. 50/1923 (the judgment is marked as Ext. Al(a) in the present suit) will not operate as res judicata debarring the father of defendants 1 to 5, Muhammed from agitating his rights over the properties. Considering the attaladakkam right claimed by the tharwad, the Court found that "the tharwad could not set up any attaladakkam right over the properties mentioned and possessed by Palamkakkada tharwad of which the father of defendants 1 to 5 was the last surviving member. The Court therefore held that the tharwad cannot question the right of Muhammed, the sole surviving member of Palamkakkad tharwad to execute the gift deed. The issue relating to the maintainability of the suit was disposed of holding that the suit was not maintainable because it was premature. It was also held that the power of attorney enabling the present plaintiff to file the suit, could not confer any valid right in favour of the junior member because the tharwad at the relevant time had no right over the properties.
6. Ext. B20 judgment was challenged in appeal before this Court as A.S.No. 366/1971. This Court dismissed the appeal as not pressed. (Ext. B22, dated 26-2-1975).
7. It can thus be seen from Ext. B20 judgment that there is a clear decision against Kadapurath tharwad that the tharwad has no attaladakkam right over the properties in question. The gift deed executed by Muhammed, father of defendants 1 to 5 in the present suit, was held to be valid and hence unimpeachable. It is true that the Court had also found that the suit was premature. Not only that, there is yet another finding that the power executed in favour of the plaintiff herein to institute the said suit, did not confer any valid right on him as the suit properties belonged to Palamkakkad tharwad and not "the tharwad".
8. Regarding the facts of the present case, it is enough if we refer to the main issues tried and disposed of by the Court below. We shall repeat the issues.
"1. Whether the Kadapurath Illam people are attaladakkam heirs of Palamkakkada tharwad?
2. Whether the decision in Civil 50/1923 binds the defendants?
3. Whether the suit is hit by the rule of res judicata on account of judgment in O. S. 47/1969?"
9. These issues manifest that the matter directly and substantially in issue in the present suit was directly and substantially in issue in O.S. 47/1969 and that too between the same parties. It is also clear that the parties to O. S. 47/1969 were litigating under the same title. There is no dispute that the Court which decided 0. S. 47/1969 is competent to try the present suit. The conditions necessary to attract "res judicata" are therefore satisfied and accordingly we have little doubt that the present suit is barred by res judicata on account of Ext. B20 judgment (affirmed in Ext. B22-A. S. 366/1971 dated 26-2-1975).
10. The learned counsel for the appellant however submits that in the light of the finding in Ext. B20 judgment to the effect that the plaintiff, though the power holder of the Karanavan of the tarwad, could not have filed the suit on behalf of the tarwad as the properties did not belong to the tarwad, it will be too much to say that the tarwad was a party to the suit, which was disposed of by Ext. B20 judgment. That the former suit was between the same parties as in the present suit cannot be disputed though there was a finding in the former suit, that the suit was not maintainable. What is envisaged under Section 11 C.P.C. is that 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. To press into service the| doctrine of res judicata or estoppel by record it is enough if the party concerned shows that the parties to both the suits were the same, and are persons whose names are on the record at the time of the decision, even if a party may be a person who got intervened in the suit. Such a party has the right to file an appeal and get the judgment and decree set aside. It is not the case of the appellant that law did not permit him to file an appeal against Ext. B20 judgment. In fact he did file an appeal and it was dismissed as not pressed. (Ext. B22). If that be so, the above argument of the counsel is without substance and hence liable to be rejected as not sustainable in law. We therefore, hold that the suit, O.S. 47 of 1969 disposing of which Ext. B20 judgment was pronounced, was filed by the tharwad. The tharvad therefore is bound by Ext. B20 judgment.
11. The Privy Council in Shankarlal v. Hiralal, AIR 1950 PC 80 has held thus :--
"...........Court holding that suit is not maintainable by reason of failure to comply with Section 80 -- Findings given on merits are obiter and do not support plea of res judicata either in favour of or against party".
Relying on this passage and a few other decisions of High Courts the learned counsel argued that the finding in Ext. B20 judgment that the tharwad has no attaladakkam right over the suit properties is liable to be declared obiter, and of no relevance or of importance in view of the fact that the suit itself was dismissed, holding that it was premature. If that be so, the finding on merit, does not and cannot support the plea of res judicata, the learned counsel submits. Dilating on this aspect, the learned counsel contended that the finding on merits was unnecessary because the Court had positively held that the suit was premature; that in view of the specific finding, that the tharwad had no manner of right over the plaint properties at the time when the suit was filed, the power of attorney itself conferring right on the plaintiff, who was then a junior member of the tharwad, to file the suit, was in consequence invalid. We are unable to take cognizance of this approach to this issue in the light of the decision of the Supreme Court in Vithal Yeshwant Jathar v. Shikandar Khan Kakhtum Khan Sardesai, AIR 1963 SC 385 namely, ".......if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point --each of which by itself would be sufficient for the ultimate decision -- the decision on each of these points operates as res judicata between the parties."
This view has been reiterated by the Supreme Court in Gangappa Gurupadappa Gugwad v. Rachawwa, AIR 1971 SC 442. In this decision the Supreme Court has held thus: --
"10. No doubt it would be open to a Court not to decide all the issues which may arise on the pleadings before it if it finds that the plaint on the face of it is barred by any law. If for instance the plaintiff's cause of action is against a Government and the plaint does not show that notice under Section 80 of the Code of Civil Procedure claiming relief was served in terms of the said Section it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 of the Code is being claimed, it would be the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice under Section 80 was necessary. If the Court decides the various issues raised on the pleadings, it is difficult to see why the adjudication of the rights of the parties, apart from the question as to the applicability of Section 80 of the Code and absence of notice thereunder should not operate as res judicata in subsequent suit where the identical question arise for determination between the same parties."
The Division Bench decision of this Court in S. V. Bhatta v. S.S. Bhatta, AIR 1972 Kerala 245 : 1972 Ker LT 215 is in accord with the; principles laid down by the Supreme Court in the above decisions. We concur with the ratio laid down in the said decision. In view of the aforesaid binding decisions of the Supreme Court, we do not think it necessary to discuss the various High Court decisions cited before us. It should also be remembered that there are no degrees of importance of any issue, in deciding the question whether the trial of an issue, in a subsequent suit is prohibited which was directly and substantially in issue between the same parties in an earlier suit. (See Prem Das v. Joti Pershad, AIR 1971 Delhi 282).
The Court below therefore rightly found that the suit was barred by res judicata, on account of Ext. B20, the judgment disposing of O. S. 47 of 1969, as affirmed by Ext. B22 dated 26-2-1975, in appeal.
12. The learned counsel for the 11th respondent who had filed O.S. 47/1969 as the power holder of the Karanavan of the tharwad contended that in any event, the bar of res judicata cannot be pressed into service by the contesting defendants to defeat the rights of the tharwad over plaint B schedule properties. Why he says so, is this : Plaint B schedule properties belonged exclusively to Ahammed on the partition of the properties of Palamkakkad tharwad of which the said Ahamed and Muhammed, father of defendants 1 to 5, were the members. That there was a partition in the said tharwad in 1923 is not disputed. It cannot be disputed in view of the finding in Ext. Al(a) judgment. So far as the claim of defendants 1 to 5, the legal Representatives of deceased Muhammed, over these properties is concerned, the learned counsel submits that the same must be deemed to have been lost; or in any event, they are disabled to agitate the same in the present suit on account of Ext. Al(a) judgment declaring that the tharwad has attaladakam right over the said properties. Ahamed is bound by the said judgment. According to the learned counsel the aforesaid finding is binding on Muhammed also because in the said suit the rights considered and determined were the rights of the two tharwads. In support of this argument he pressed into service the well established principle that the bar of res judicata is reciprocal and mutual to the parties in a later action, i.e. a judgment binds both parties and not merely the party who got defeated in the suit.
13. This question has specifically been considered in Ext. B20 judgment. The finding arrived at reads : --
"It could not therefore be said by any stretch of imagination, that Ext. P1 suit was filed by the plaintiff's tarwad against the sole defendant therein in his capacity as the representative of his tarwad. To put it in other words, it could not be said that Ext. P1 suit was filed against Palamkakkada tarwad represented by the sole defendant in that suit. Since it is admitted that the partition had taken place between the first defendant and the elder brother Ahamed, before Ext. P1 suit was filed, it could not be said that his elder brother was competent either to represent the Palamkakkada tarwad or to represent the present first defendant. The first defendant was not made a party in Ext.P 1 case that it is not seen that he was in any way represented by his elder brother in his capacity as the agent of the first defendant. That being so, the decision in Ext. P1 case could not in any way operate as res judicata as against the contentions now put forward by the present first defendant".
It can thus be seen that in Ext. B20 judgment, it has specifically been found that the rights of Muhammed or his legal representatives are not affected by the judgment, Ext. Pl(a). The above argument of the learned counsel for the 11th defendant therefore only deserves rejection.
14. From the above discussion, it is clear that the identity of title of the two tarwads over the properties agitated in Ext. P1 suit was different from the identity of title agitated in O.S. 47/1969, though the properties involved in the two suits were more or less identical. What is required to be proved or established, to hold that there is bar of res judicata for the subsequent suit, is that in both the suits, the title of the parties agitated, is identical, but not the identity of the actual properties involved in the two litigation. It has been so declared by the Supreme Court in Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33. The dictum reads : -
"The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases."
15. We therefore hold that the Court below rightly held that the suit is barred by res judicata on account of the findings in Ext. B20 that "the plaintiff's tharwad has no manner of Attaladakkam right over the suit properties and therefore the right of the first defendant Muhammed to execute Ext. P4 gift deed cannot be questioned by the plaintiff tharwad".
The appeal fails and the same is dismissed. No costs.