Dismissed

Unnikrishnan v. Gopalakrishnan

Kerala HC1 Jun 2012RSA/538/2012

Case brief

AI extract

What is this about?

This regular second appeal in a partition suit was allowed to be dismissed. The high court held that the claim was barred by res judicata and constructive res judicata as it was fully adjudicated in a previous suit (O.S.No.134 of 1986) involving the same parties and property, where the plaintiffs were respondents. No substantial question of law was involved.

What did the court decide?

The second appeal was dismissed; the judgment and decree passed by the courts below were upheld.

Unnikrishnan Vs Gopalakrishnan — Partition | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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FRIDAY, THE 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934

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RSA.No. 538 of 2012 ()

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AS.59/2005 of SUB COURT, OTTAPPALAM OS.90/1991 of MUNI-MAGI.COURT,PATTAMBI

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APPELLANTS/APPELLANTS/PLAINTIFFS :

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UNNIKRISHNAN, AGED 42 YEARS

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S/O. PANANGATTU PUTHENVEETTIL SARASWATHI AMMA

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RESIDING AT KURUPPATH VEETTIL

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NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PALAKKAD DISTRICT.

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HARIDAS, AGED 40 YEARS

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S/O. PANANGATTU PUTHENVEETTIL SARASWATHI AMMA

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RESIDING AT KURUPPATH VEETTIL

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NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PALAKKAD DISTRICT.

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BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI

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SMT.SMITHA GEORGE

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RESPONDENTS/RESPONDENTS/DEFENDANTS :

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GOPALAKRISHNAN

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S/O.LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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SREEDEVI

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D/O. LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL

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NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK

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PATTAMBI-679 303, PALAKKAD DISTRICT.

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MOHANAN

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S/O. LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL

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NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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MALATHI AMMA

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D/O. LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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PURUSHOTHAMAN

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S/O. LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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RSA.No. 538 of 2012

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VENUGOPALAN S/O. LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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BALAKRISHNAN S/O. LATE SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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SURESH BABU S/O. SREEDEVI, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT. 9. VIJAYAN S/O. LATE KAMALAKSHI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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KERALAKUMARI D/O. LATE KAMALAKSHI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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SATHYENDRAN S/O.LATE KAMALAKSHI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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NIRMALA D/O. LATE KAMALAKSHI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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MADHU

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S/O. LATE KAMALAKSHI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT. 14. USHA

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D/O. LATE KAMALAKSHI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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SARASWATHY AMMA

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D/O. LATE KALLYANI AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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GOVINDAN

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S/O. PANANGATTU PUTHENVEETTIL SARASWATHY AMMA NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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RAVINDRAN

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S/O. PANANGATTU PUTHENVEETTIL SARASWATHY AMMA NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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RSA.No. 538 of 2012

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VIJAYAKUMAR S/O. PANANGATTU PUTHENVEETTIL SARASWATHY AMMA NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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USHA BABY D/O. PANANGATTU PUTHENVEETTIL SARASWATHY AMMA NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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MANIKANDAN S/O. SARASWATHY AMMA, PANANGATTU PUTHENVEETTIL NETHIRIMANGALAM AMSOM AND DESOM, OTTAPALAM TALUK PATTAMBI-679 303, PALAKKAD DISTRICT.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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R.S.A.No.538 of 2012

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Dated this 01^st day of June, 2012

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JUDGMENT

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This appeal arises from the judgment and decree in O.S.No.90 of 1991 of the Court of learned Munsiff-Magistrate, Pattambi, confirmed by the learned Sub Judge, Ottappalam in A.S.No.59 of 2005.

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Appellants/plaintiffs sought partition of the suit properties claiming that it (plaint A schedule) belonged to one Govindan Nair in jenm, that property was sold in auction in execution proceeding in S.C.No.513 of 1926 and was purchased by one Neelakandan Nair who took delivery of the property through Court on 11.10.1938. The said Neelakandan Nair granted an oral lease of the property in favour of Kandamkulangara Sankunni. Later, Neelakandan Nair assigned his jenm right to Sankaran Namboodiripad as per document No.100 of 1940, a certified copy of which is marked as Ext.A2. He sold the property to Mariyil Govindan Nair as per Ext.A3 who executed a Will in favour of his wife, Kalyani Amma and children. Plaintiffs and defendants, it is alleged are their legal representatives and it is on the above premise that plaintiffs

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R.S.A.No.538 of 2012

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-: 2 :-

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sought partition and separate possession of the share claimed by them in the suit properties.

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Defendants contended that the suit property belonged to one Kuttikrishnan Nair as per registered Mumpattom Chit No.482 of 1935 and he gifted that property to his sister, Kalyani Amma as per gift deed No.2055 of 1943. Neelakandan Nair who allegedly purchased the property in Court auction could not get possession of the property nor could he grant any lease in favour of Kandamkulangara Sankunni. Hence Govindan Nair did not get any right over the property. It is also contended that the suit is bad for estoppel and res judicata in view of the judgment and decree in O.S.No.134 of 1986.

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Trial Court accepted the plea of defendants and non suited appellants/plaintiff. That judgment and decree were confirmed by the first appellate court. Hence the second appeal.

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Learned Senior Advocate has contended that the finding entered by the courts below regarding res judicata and constructive res judicata is not correct as both cannot go together. It is also contended that finding of the first appellate court regarding registered documents in a collateral proceeding as if the said documents did not confer right is not correct in view of Sec.92 of the Evidence Act.

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In paragraph 19 of the judgment first appellate court

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R.S.A.No.538 of 2012

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observed that having regard to the evidence brought in as pleaded by the defendants, Exts.A1 to A3 relied on by the plaintiffs would not create any title in favour of Govindan Nair as there is no evidence to show that the said Govindan Nair got possession of the property. The said observation is made by the learned Additional District Judge in the light of Ext.B2, judgment in A.S.No.29 of 1991 arising from the judgment and decree in O.S.No.134 of 1986 and Ext.X1, document executed by Kuttikrishnan Nair in the trial court.

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It is not disputed that plaintiffs were also defendants in O.S.No.134 of 1986 and the said suit was filed by some other members of the tharvad claiming partition of the very same property. It is true that at the time of institution of the suit, plaintiffs were minors and hence were represented by their mother as guardian in O.S.No.134 of 1986, herself being a defendant in that suit. Regarding the right claimed by the plaintiffs, trial court decided O.S.No.134 of 1986 against them. That was confirmed by the first appellate court by Ext.B2, judgment in A.S.No.29 of 1991.

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True that in the plaint there is vague averment that the guardian had not protected the interest of plaintiffs (as defendants) in O.S.No.134 of 1986. But there is no allegation of fraud or collusion against the guardian of plaintiffs. Trial court

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R.S.A.No.538 of 2012

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noticed that plaintiffs as defendants in O.S.No.134 of 1986 were minors at the time of institution of that suit but judgment was pronounced after they had attained majority. But, they did not either elect to discontinue their contentions in the suit or seek to discharge their guardian. Instead, they continued to be contesting defendants in the suit represented by their mother.

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At any rate, at the time A.S.No.29 of 1991 was filed against the judgment and decree in O.S.No.134 of 1986 with plaintiffs also as respondents, they had attained majority and had engaged a counsel to appear on their behalf. Unfortunately as the learned counsel expired, they were not represented at the time of final hearing of A.S.No.29 of 1991. But the other respondents were represented by counsel and the appellate court decided A.S.No.29 of 1991 on merit.

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In other words, the claim being made by the plaintiffs in the present suit has already been adjudicated in O.S.No.134 of 1986 and that decision was confirmed in A.S.No.29 of 1991 by Ext.B2, judgment. I must notice that in the present suit plaintiffs are not challenging the judgment and decree in O.S.No.134 of 1986 as confirmed in A.S.No.29 of 1991 on any ground whatsoever, if any available to them. Hence an investigation into the case pleaded by the plaintiffs is barred by res judicata as correctly found by the courts below. If plaintiffs had any other

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R.S.A.No.538 of 2012

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contention available to them but not urged in O.S.No.134 of 1986, that contention is barred by constructive res judicata since they ought to have raised that contention in O.S.No.134 of 1986.

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The next question is whether first appellate court was right in holding that Exts.A1 and A2 would not confer right on the plaintiffs. The finding entered by the first appellate court is based on Ext.B2, judgment and Ext.X1, document executed by Kuttikrishnan Nair as per which he got right over the property and which he gifted in favour of his sister, Kalyani Amma as per document No.2055 of 1993. In that view of the matter I do not find any infirmity in the judgment of first appellate court as well.

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On hearing learned Senior Advocate and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring its admission.

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The second appeal is dismissed.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

Unnikrishnan v. Gopalakrishnan

Case brief

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Unnikrishnan v. Gopalakrishnan

Case brief

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