In a second appeal challenging a decree in O.S. 705 of 1988, the High Court of Kerala held that the suit is barred by res judicata as the plaintiff's father was a party to the prior suit regarding the same properties. The court further held the appeal was barred by limitation under Article 59.
The second appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B. SURESH KUMAR
TUESDAY, THE 23RD DAY OF OCTOBER, 2018/ 1ST KARTHIKA, 1940
S.A. No. 86 OF 1996
[AGAINST THE JUDGMENT AND DECREE DATED 20.06.1995 IN A.S. NO. 115 OF 1992 OF THE DISTRICT COURT, ALAPPUZHA]
[AGAINST THWE JUDGMENT AND DECREE DATED 30.5.1992 IN O.S. NO. 705 OF 1987 OF THE PRINCIPAL MUNSIFF’S COURT, ALAPPUZHA.]
APPELLANT/APPELLANT/PLAINTIFF:
M.D. SHAJI BONSALA, MUKHAPPIL HOUSE, KIZHAKKEKARA VADAKKU, THRIKKUNNAPUZHA
BY ADVS.
SHRI. P.G. PARAMESWARA PANICKER
SHRI. P. GOPAL
RESPONDENTS/RESPONDENTS/DEFENDANTS 1,2, 4 TO 23
S.A.No. 86 of 1996
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[THE CAUSE TITLE AMENDED BY ADDING THE NAME AND ADDRESS OF ADDITIONAL R22 AND THE L.Rs. OF ADDITIONAL R22 ARE IMPLEADED AS ADDITIONAL R23 TO R26 AS PER ORDER DATED 8.3.2004 ON C.M.P. NOS. 2475 OF 1997 AND 2473 OF 1997 RESPECTIVELY.]
[THE APPELLANT IS EXEMPTED FROM IMPLEADING THE LEGAL REPRESENTATIVES OF DECEASED ADDITIONAL RESPONDENTS 23 TO 25 AS PER THE ORDER DATED 11.7.2017 IN I.A. NO. 1655 OF 2017]
[AS PER THE ORDER DATED 11.7.2017 ON MEMO DATED 14.6.2017 BEARING C.F. NO. 4021 OF 2017 RESPONDENTS 4 TO 8 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 3 RD RESPONDENT]
[THE APPELLANT IS EXEMPTED FROM SUBSTITUTING THE LEGAL REPRESENTATIVES OF DECEASED 10TH WHO DIED ON 9.5.2011 AND 13TH RESPONDENT WHO DIED ON 9.4.2017 AT THE RISK OF THE APPELLANT AS PER THE ORDER DATED 11.7.2017 IN I.A. NO. 1656 OF 2017 AND I.A. NO. 1657 OF 2017 RESPECTIVELY]
[THE 15TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 3.8.2017 IN I.A. NO. 1683 OF 2017]
ADDITIONAL RESPONDENTS 27 TO 31:
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S.A.No. 86 of 1996
[THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS IMPLEADED AS ADDITIONAL RESPONDENTS 27 TO 31 AS PER ORDER DATED 3.8.2017 IN C.M.P. NO. 680 OF 1996]
ADDITIONAL RESPONDENTS 32 TO 34
[THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 32 TO 34 AS PER ORDER DATED 3.8.2017 IN I.A. NO. 177 OF 2004]
ADDITIONAL RESPONDENTS 35 TO 37
[THE LEGAL HEIRS OF DECEASED 16TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 35 TO 37 AS PER ORDER DATED 3.8.2017 IN I.A. NO. 458 OF 2010]
BY ADVS.
SHRI. K. RAVU SHRI. P. RAJEEV KUMAR
SHRI. T.H. ABDUL AZEEZ
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
The plaintiff in the suit is the appellant. The suit was one for setting aside the decree in an earlier suit and for consequential reliefs.
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The properties involved in the suit are included in the eight schedules to the plaint. Three separate items measuring 18 cents, 32 cents and 41 cents, totalling to 91 cents is included in the plaint schedule item No.1. An item measuring 4 cents is included in the plaint schedule item No. 2, an item measuring 20 cents is included in the plaint schedule item No. 3, an item measuring 17 cents is included in the plaint schedule item No.4, an item measuring 29 cents is included in the plaint schedule item No. 5, an item measuring 14 cents is included in the plaint schedule item No.6, an item measuring 60 cents and a building is included in the plaint schedule item No. 7 and an item measuring 28 cents is included in the plaint schedule item No. 8. The first defendant is the brother of the father of the plaintiff. Defendants 2 to 4 are the remaining siblings of the father of the plaintiff. Defendants 5 to 10 are the legal representatives of a deceased brother of the father of the plaintiff. Eleventh defendant is the mother of the plaintiff. Defendants 12 to 15 are the siblings of the plaintiff. The case of the plaintiff as regards the properties included in the plaint schedule item No.1 and the property included in the plaint schedule item No. 6 is that the same belonged to his father Damodaradas and his siblings and on the death of Damodaradas, 1/6th share out of the said properties devolved on the plaintiff and his siblings. As far as 60 cents of property included in the plaint schedule item No.7, the case of the plaintiff is that though the same is one standing in the name of the deceased husband of the fifth defendant, Madhaven, it is a
S.A.No. 86 of 1996
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property obtained by the deceased father of the plaintiff and therefore he is entitled to 1/6th share in the said property. As regards the properties included in plaint schedule items 2, 3 and 4 are concerned, the case of the plaintiff is that it belongs to him absolutely. As regards the 29 cents of property included in the plaint schedule item No. 5, the case of the plaintiff is that it belongs to the fifteenth defendant, his brother. Likewise, as regards the property included in plaint schedule item No. 8, the case of the plaintiff is that it belonged to his mother, the eleventh defendant. There was an earlier suit by the first defendant against the father of the plaintiff as O.S. No. 12 of 1965. The plaint schedule properties in the present suit were the subject matter of the said suit. The case set out by the first defendant in the said suit as plaintiff was that the properties described in schedules 1 to 6 and 8 and other properties belonged to his mother Kunjipennu; that on her death, the same were partitioned among her children including the father of the plaintiff in terms of a document executed in the year 1956; that the said document was not registered as the predecessor of defendants 5 to 9 died all on a sudden; that though the document was not registered, the parties are holding the properties on the basis of the said partition and that therefore, the plaintiff is entitled to get his title over the properties allotted to his share in the said document declared. The properties allotted to his share in the document were included in the B schedule to the plaint in the said suit. As far as the 60 cents included in the plaint
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schedule item No.7, it was contended by the first defendant in the said suit that though the same is the property obtained by the deceased husband of the fifth defendant in his name, it is actually a property obtained by him along with Madhaven, and Vasudevan, another brother, and therefore, he is entitled to 1/3rd share in the said property on that basis. That suit was decreed in part by the trial court. The plaintiff therein, namely, the first defendant took up the matter in appeal and the appellate court modified the decision of the trial court and decreed the suit as prayed for. Though a third party challenged the decision of the appellate court before this Court, the second appeal preferred in this connection was dismissed by this Court. According to the plaintiff, his father was a person of unsound mind at the time when O.S.No 12 of 1965 was instituted and that the decision in the said suit is vitiated by fraud and collusion. The suit, in the circumstances, was for setting aside the decree in O.S. No 12 of 1965 and for partition of the properties described in plaint schedule item numbers 1, 6 and 7 and also for a declaration of his title and possession over the properties included in plaint schedule item Nos. 2, 3 and 4.
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and dismissed the suit on that basis. Though the plaintiff challenged the decision of the trial court in appeal, the appellate court confirmed the same. Hence, this second appeal.
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Ext.A12 is a letter sent by the fifteenth defendant to the fourteenth defendant. Likewise, Ext.A13 is a letter sent by the fourteenth defendant to a stranger. True, the aforesaid letters refer to the mind related ailments of Damodaradas. As noted, the question was whether the father of the plaintiff was having steady and disposable state of mind during 1965. The courts below did not give any credence to Ext.A11 prescription as the same was one issued in the year 1972 and the Doctor who issued the same was not examined. Likewise, the courts below did not give any credence to Exts.A12 and A13 letters as the same were of the year 1972. PW2 is a registered medical practitioner. He obtained registration only in the year 1963. His evidence, however, was that he was treating Damodaradas for ailments relating to his mind from the year 1955. The courts below noticed from the evidence of PW3 that the father of the plaintiff was dealing with these properties during 1957. It is in the said circumstances, the courts below found that the evidence relied on by the plaintiff in support of the plea that his father was a person of unsound mind during 1965 when the earlier suit was instituted cannot be accepted. I do not find any infirmity in the said findings concurrently taken by the courts below.
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cents included in the plaint schedule item No. 7 were held by the father of the plaintiff and his siblings; that there was a partition in relation to the said properties; that though the document prepared in this connection was not registered, the parties were holding the properties on that basis and that therefore, the title of the parties over the properties allotted to their respective shares in terms of the said partition has to be declared. As regards the property described in plaint schedule item No.7, the case of the first defendant, the plaintiff in the said suit was that though it stood in the name of his deceased brother Madhaven, it was a property obtained by him and his brother Vasudevan along with Madhaven and that therefore, he has 1/3 share in the said property. It is seen that the case set up by the first defendant as plaintiff in O.S. No. 12 of 1965 in relation to the suit properties has been accepted by the court and a decree was passed on that basis in the said suit. The predecessor of the plaintiff, namely, his father was a party to the said suit. The plaintiff cannot, therefore, assert title to the properties included in plaint schedule properties contrary to the findings rendered in the said suit. The plaintiff in fact does not dispute the said fact. It is on account of the said reason that he challenged the decree in O.S. No. 12 of 1965. Insofar as the challenge against the decree in O.S. No. 12 of 1965 was repelled, the findings of the courts below that the present suit is hit by the principles of res judicata have to be confirmed and I do so.
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be confirmed as it is found that the findings rendered by the courts below on the question relating to limitation are in order. As noted, the suit is mainly for setting aside a decree passed in the earlier suit. All the remaining reliefs sought in the suit are consequential. Article 59 of the schedule to the Limitation Act deals with suits of this nature. It provides that such suits are to be instituted within three years when the facts entitling the plaintiff to have the decree cancelled or set aside first become known to him. As observed, the decree passed in the appeal preferred against the decree in O.S. No.12 of 1965 was taken up in second appeal before this Court by a third party. It has come out that the father of the plaintiff died during the pendency of the second appeal and the plaintiff and his siblings were impleaded as additional respondents in the second appeal. The second appeal was disposed of by this Court on 20.01.1977. In so far as the plaintiff was impleaded as an additional respondent in the said second appeal, I have no doubt that the present suit instituted in the year 1987 is barred by limitation.
The second appeal, in the circumstances, is devoid of merit and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE
PKK
2 issues framed by the court
Whether the present suit is barred by res judicata given that the properties were the subject matter of a prior suit.
Whether the second appeal is barred by limitation under Article 59 of the Schedule to the Limitation Act.
M.D. SHAJI BONSALA
KRI SHNAN RAGHAVAN (L.Rs.)
KRI SHNAN VASUDEVAN (L.Rs.)
SULOCHANA MADHAVAN (L.Rs.)
SULOCHANA MRINALANY
MADHAVAN MRITHYUNJAYAN
P.B. SURESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
