Dismissed

Buvanachandran Nadar v. Janaki Subhadra

Kerala HC15 Jan 2016RSA/946/2013

Case brief

AI extract

What is this about?

In regular second appeals challenging decisions in suits for injunction and declaration of title regarding partitioned properties, the High Court of Kerala dismissed the appeals. The court held that the plaintiff's claims were barred by res judicata as possession issues were already adjudicated in an earlier suit where the second defendant's possession was rejected, and the plaintiff failed to pro

What did the court decide?

The regular second appeals RSA.Nos. 946 & 948 of 2013 were dismissed, confirming the original decrees.

Buvanachandran Nadar Vs Janaki Subhadra — Partition | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937

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RSA.No. 946 of 2013

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JUDGMENT DATED 12-10-2012 IN AS 60/2003 OF SUB COURT, NEDUMANGAD JUDGMENT DATED 30-05-2003 IN OS 303/1997 OF PRL. MUNSIFF COURT, NEDUMANGAD

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APPELLANT/APPELLANT/2ND DEFENDANT:

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-------------------------------------------------------------

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BHUVANACHANDRAN NADAR, AGED 64 YEARS,

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S/O.DAMODARAN NADAR, VALIYAVILAKATHU VEEDU, MITHRUMALA, KALLARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT.

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BY ADVS.SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS 1 TO 6 & DEFENDANTS 1 & 3:

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1. JANAKI SUBHADRA, AGED 70 YEARS, PADMA VILASAM, CHAVADI MUKKU, SREEKARIYAM, PANGAPPARA VILLAGE,

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THIRUVANANTHAPURAM DISTRICT - 695 581.

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2. KRISHNAN NADAR, AGED 63 YEARS, VASUDEVAN NADAR, JEENESH BHAVAN, MITHRUMALA, KALLARA VILLAGE, THIRUVANANTHAPURAM DISTRICT.

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3. JANAKI RADHA, AGED 60 YEARS, NEDUVILA VEEDU, KIZHAYIKONAM, NALLANADU VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 581.

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4. JANAKI LEELA, AGED 55 YEARS, PUTHUVAL VEEDU, PANAGAPPARA VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 581.

msv/

-2-

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RSA.No. 946 of 2013

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5. NAKULAN, AGED 50 YEARS,

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RESIDING AT VALIYAVILAKATHU VEEDU, NOW WORKING IN THE MILITARY SERVICE, REPRESENTED BY THE POWER OF ATTORNEY C.B.REMANI, AGED 43 YEARS OF REMANI BHAVAN, KALLAYAM CHETTIVILAKAM VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 608.

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6. KRISHNAN NADAR SAHADEVAN, AGED 50 YEARS, AYIRAVALLIKONATHU, PUTHEN VEEDU, VAMANAPURAM VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695 606.

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7. MALLAN NADAR DAMODARAN NADAR, AGED 92 YEARS S/O.MALLAN NADAR, VALIYAVILAKATHU VEEDU, MITHURMALA, KALLARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT - 695 608. (REMOVED FROM THE PARTY ARRAY)

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7TH RESPONDENT IS REMOVED FROM THE ARRAY OF PARTIES AS PER ORDER DTD. 15.9.2015 IN IA.2367/2015.

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8. DAMODARAN NADAR MURALI, AGED 52 YEARS, S/O.DAMODARAN NADAR, VALIYAVILAKATHU PUTHEN VEEDU, MITHURMALA, KALLARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT - 695 608.

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R1-R6 BY ADV. SRI.R.S.KALKURA

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15-01-2016, ALONG WITH RSA. 948/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = = = = =

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R.S.A.Nos.946 & 948 of 2013.

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= = = = = = = = = = = = = = =

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Dated this the 15^th day of January, 2016.

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J U D G M E N T

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The common judgment in A.S.Nos.60 of 2003 and 61 of 2003 on the file of the Sub Court, Nedumangad is under challenge in these appeals. Among the appeals, A.S.No.60 of 2003 was preferred against the decision in O.S.No.303 of 1997 on the file of the Munsiff Court, Nedumangad and A.S.No.61 of 2003 was preferred against the decision in O.S.No.233 of 1996 on the file of the said court. The suits referred to above were tried jointly treating O.S.No.233 of 1996 as the lead case. As such, I am referring to the parties in this judgment as they appear in O.S.No.233 of 1996.

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O.S.No.233 of 1996 is a suit for injunction.

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The second defendant is the father of the plaintiff and the first defendant is the brother of the second defendant. The

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RSA.Nos.946 & 948/2013.

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second defendant obtained 50 cents of property as per the terms of Ext.A1 partition deed. As per the very same document, the first defendant also obtained 50 cents of property. The case of the plaintiff is that at the time of execution of Ext.A1 partition deed, the properties referred to above were outstanding on a mortgage and as such the defendants did not get possession over the same. It is also the case of the plaintiff that later, the second defendant obtained the mortgagee's right in respect of the suit properties and accordingly he came to be in possession of the properties allotted to him and to the first defendant as per the said partition deed. It is the further case of the plaintiff that later, the second defendant handed over his 50 cents lying on the southern side of the said 1 acre to the plaintiff for cultivation. It is also the case of the plaintiff that while so, he took possession of the suit property which was allotted to the first defendant as per Ext.A1 partition deed and situated on the northern side of the 50 cents of

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RSA.Nos.946 & 948/2013.

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property obtained by him from his father. It is alleged by the plaintiff that the first defendant is attempting to trespass into the suit property. The first defendant contested the suit. According to the first defendant, he obtained the suit property as per the terms of Ext.A1 partition deed and that he has been in possession of the same all throughout. According to him, there was an earlier suit for injunction filed by him against second defendant in respect of the suit property and the same was decreed holding that the first defendant is in possession of the suit property and therefore, the present suit is barred by res judicata . After the institution of the suit, the first defendant filed O.S.No.303 of 1997 for declaration of his title over the suit property and for fixation of the boundary separating the suit property and the property obtained by the second defendant as per the partition deed. In the said suit, the plaintiff raised a counter claim for declaration of his title over the suit property. The case set up by the plaintiff in

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RSA.Nos.946 & 948/2013.

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the counter claim was that he has perfected title to the property by adverse possession and limitation. As indicated above, the suits were tried together. The trial court accepted the contention raised by the first defendant and dismissed O.S.No.233 of 1996 and decreed O.S.No.303 of 1997 declaring the title of the first defendant over the suit property. A decree for fixation of the boundary separating the properties obtained by defendants 1 and 2 as per Ext.A1 partition deed was also passed in O.S.No.303 of 1997. Aggrieved by the decision of the trial court, the plaintiff preferred appeals. The appellate court, on a re-appraisal of the evidence on record, confirmed the decision of the trial court. Hence these second appeals.

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Heard the learned counsel for the appellant

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as also the learned counsel for the legal representatives of the first defendant who died in the meanwhile.

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The learned counsel for the appellant contended that the very case of the appellant is that he is in

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RSA.Nos.946 & 948/2013.

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possession of the suit property and the issue concerning possession of the suit property has not been adjudicated at all by the courts below. According to the learned counsel, the courts below did not adjudicate the said issue on the ground that the same is barred by res judicata on account of the decision in the earlier suit viz., O.S.No.4 of 1991. It was pointed out by the learned counsel that the plaintiff was not a party to O.S.No.4 of 1991 and his claim for possession over the suit property is not under the second defendant who is a party to the said case. It was also pointed out by the learned counsel that without there being an adjudication as to possession, the plaintiff should not have been nonsuited. In other words, the contention of the learned counsel is that the impugned decisions are liable to be set aside on that sole ground and the matter has to be remitted to the trial court of fresh disposal.

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It is beyond dispute that the first defendant holds title to the suit property. The case of the plaintiff is

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RSA.Nos.946 & 948/2013.

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only that he is in possession of the suit property. As pointed out by the courts below, in the earlier suit for injunction filed by the first defendant against the second defendant namely O.S.No.4 of 1991, it was found that the first defendant is in possession of the suit property. True, the plaintiff has no case that he had obtained possession of the suit property from the second defendant. The case of the plaintiff, on the other hand, is that the second defendant had handed over possession of the 50 cents of property which he obtained as per Ext.A1 partition deed and while holding possession of the said 50 cents, the plaintiff took possession of the suit property also. But, merely for the reason that the plaintiff has set up such a case in the plaint, it cannot be said that the suit is not barred by res judicata. The second defendant who was holding possession of the property allotted to him as per Ext.A1 partition deed claimed that he is in possession of the suit property also and the said claim of possession of the second defendant was

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RSA.Nos.946 & 948/2013.

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turned down by the court in O.S.No.4 of 1991. As such, the plaintiff who obtained possession of the property of the second defendant from him after the earlier suit cannot be heard to contend that he is possession of the suit property also, after the very same claim of the second defendant has been rejected by the court in the earlier suit. In the said circumstances, the view taken by the courts below that the claim of possession of the plaintiff over the suit property is barred by res judicata is perfectly in order. Further, apart from the assertion of the plaintiff that he is in possession of the suit property, there is nothing on record to indicate that he is in possession of the suit property. In the circumstances, the courts below cannot be faulted for having decreed O.S.No.303 of 1997. As far as the counter claim in the said suit is concerned, as noted above, the case set up by the plaintiff is that he has acquired title over the suit property by adverse possession. Since it is found that that the plaintiff has not established possession over the

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RSA.Nos.946 & 948/2013.

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suit property, the decision in the counter claim is also in order. Coming to O.S.No.233 of 1996, the same is a simple suit for injunction. Since it is found that that the plaintiff has not established possession over the suit property, the decision in the said suit is also in order. In the said view of the matter, the second appeals are devoid of merits and the same are accordingly dismissed.

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Sd/- P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Buvanachandran Nadar v. Janaki Subhadra

Case brief

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Buvanachandran Nadar v. Janaki Subhadra

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