Dismissed

Pushpam v. Vilasini

Kerala HC26 Aug 2022RSA/251/2021

Case brief

AI extract

What is this about?

Appeal dismissed. Single Judge upheld lower courts' findings that res judicata does not apply as the earlier counter-claim was dismissed on technical grounds. Suit for title was allowed; adverse possession claim rejected as limitation period was correctly computed excluding pendency of prior suit.

What did the court decide?

Appeal dismissed; lower court finding confirming title and rejecting adverse possession claim upheld.

Pushpam Vs Vilasini — Property and Title | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE M.R.ANITHA

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FRIDAY, THE 26^TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944

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RSA NO. 251 OF 2021

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AGAINST THE JUDGMENT AND DECREE DATED 13.10.2020 IN A.S. NO.36/2004 ON THE FILE OF THE COURT OF SUB JUDGE, NEYYATTINKARA

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JUDGMENT AND DECREE DATED 20.11.2003 IN O.S.NO.94/2002 ON THE FILE OF COURT OF

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PRINCIPAL MUNSIFF, NEYYATTINKARA

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APPELLANTS/APPELLANTS/DEFENDANTS NO.1 & 2 :

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1 PUSHPAM, D/O. MARIYA, ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA PAKUTHY

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2 RETNAMMA, D/O.PUSHPAM, ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA PAKUTHY

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BY ADV S.MOHAMMED AL RAFI

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RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS NO.3 & 4:

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1 VILASINI, AGED 70 YEARS D/O. REGINAL,CHUNDAVILA, ALUNINNAVILAPUTHEN VEEDU, MANALUR DESOM, NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121

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2 PREETHA AGED 45 YEARS

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D/O. VILASINI, ,CHUNDAVILA, ALUNINNAVILA PUTHEN VEEDU, MANALUR DESOM, NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121

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3 BINDU D/O.RETNAMMA, ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121

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4 VICTOR ALUNINNAVILA VEEDU, MANALOOR DESOM, NEYYATTINKARA PAKUTHY, THIRUVANANTHAPURAM-695 121 BY ADVS. SRI.R.T.PRADEEP-R1 SRI.K.C.HARISH -R1

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

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05.08.2022, THE COURT ON 26.08.2022 DELIVERED THE FOLLOWING:

RSA No.251 of 2021

JUDGMENT

Dated this the 26^th day of August, 2022

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This appeal has been directed against the judgment and decree in A.S. No.36/2004 on the file of Subordinate Judge's Court, Neyyattinkara, which arose out of judgment and decree in O.S. No.94/2002 on the file of Principal Munsiff's Court, Neyyattinkara.

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This is the second round of second appeal arising from O.S. No.94/2002. The defendants 1 and 2 are the appellants/plaintiffs and defendants 3 and 4 are the respondents (parties hereinafter be referred as per their status before the Trial Court). The suit is one for declaration of title, recovery possession and permanent prohibitory injunction. The plaint B schedule is a building situated in plaint A schedule property and which was obtained by the plaintiffs as per sale deed No.943/1978 executed by the mother of the first plaintiff. The mother was holding 16 cents of property including plaint A

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schedule under mortgage kuzhikanam deed of the year 1121 M.E. Thereafter, she obtained purchase certificate with respect to the property as per the proceedings in S.M. case No.263/1973. Parents of the first plaintiff put up plaint B schedule building and they were residing in that building. Subsequently, the brother of the first plaintiff was in occupation of the building. On 10.11.1983 in his absence father of defendants 1 to 3, Mr.Varghese trespassed into the plaint schedule property and started residing there. After that the father of defendants 1 to 3 instituted O.S. No.859/83 before the 1^st Additional Munsiff’s Court, Neyyattinkara for declaration of title and recovery of possession. The first plaintiff and her mother were the defendants in that suit and they filed written statement along with counter claim. After trial, the suit was dismissed and counter claim was decreed by the trial court.

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In appeal, the dismissal of the suit was confirmed but counter claim was dismissed, finding that it is not in proper form. The plaintiffs are in possession of plaint A schedule

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property. On 22.1.2002 the defendants attempted to grab a portion of plaint A schedule property and take possession of the same. Hence, the suit has been filed for declaration of title of plaint A schedule property and for recovery possession of plaint B schedule building and for consequential injunction.

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Defendants 1 and 2 filed written statement contending that the suit is barred by resjudicata in view of the decision in O.S. No. 859/1983. The B schedule is not described in the plaint. The plaintiffs have no right title or interest in the plaint schedule property. The purchase certificate obtained in pursuance of S.M. Case No.263/1973 does not pertain to the plaint schedule property. It will not bind the defendants since they are not parties to that proceedings. The defendants have been residing in the old building in 4 cents of property comprised in resurvey No.292 in block No.25 corresponding to the old survey No.324/2/16. The defendants and their predecessors have been in absolute possession and enjoyment of the property and building for last more than 25 years openly, continuously and peacefully and denying the title of

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the plaintiffs. Thereby, they perfected title to the 4 cents of property and the building by adverse possession and limitation. So, the suit is barred by limitation, there was no cause of action for filing the suit.

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Defendants 3 and 4 remained ex-parte. PW1 examined and Exts.A1 to A6 marked from the side of the plaintiffs. DW1 examined and Ext.B1 and B1(a) marked from the side of the defendants. Exts.C1 and C1(a) also were marked.

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The learned Munsiff on appreciating the facts and law involved found that the decision in O.S. No.859/1983 will

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not operate as resjudicata, since the counter claim was dismissed in appeal on technical ground and not on adjudicating the case on merits. It is also found that the suit is not barred by limitation and accordingly the suit was decreed declaring the title of the plaintiffs and the recovery of possession was also ordered. So, also perpetual injunction as sought for is also granted. Aggrieved by the same, the defendants filed appeal as A.S. No.36/2004 before the

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Subordinate Judge’s Court, Neyyattinkara. Originally, the appeal was dismissed by the first Appellate Court on the ground of resjudicata.

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The plaintiff approached this Court against the judgment dated 21.8.2007 by filing RSA No.346/2008 and this Court by as per the judgment dated 21.5.2020 set aside the judgment passed by the first appellate Court and allowed the appeal in part and remanded the case back to the first Appellate Court, finding that the judgment and decree in the previous suit will not operate as resjudicata, since, no adjudication was made by the first Appellate Court on the disputed issues and merely dismissed the suit on technical grounds. Accordingly, the present judgment was passed by the Sub Judge, Neyyattinkara. It has been found by the learned Sub Judge that the earlier suit the judgment in O.S. No.859/1983 will not operate as resjudicata and further that the suit is not barred by limitation. Accordingly, the judgment and decree passed by the trial court was confirmed. Aggrieved by the same the appellants/defendants No.1 and 2 approached

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this Court in appeal. At the time of admission the following substantial questions of law were framed:

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1. Whether the first appellate court committed grave illegality by allowing the application preferred by respondents 1 and 2 for changing the description of plaint B schedule property by adding 4 cents of property and building therein as per the order in IA No.1 of 2020 dated 06.10.2020, which altered the nature of the case and introduced a totally different and new cause of action?

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2. Whether the first appellate court went wrong in dismissing the appeal without giving an opportunity to the appellants to lead evidence consequent to the order dated 06.10.2020 in IA No.1 of 2020, causing serious prejudice to the appellants in violation of the directions and stipulations contained in the judgment in RSA No.346 of 2008?

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3. Is it permissible on the part of the respondents 1 and 2 to file the present suit after having suffered a decree in a counter claim without reserving any liberty to them to file a fresh suit?

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4. Is not the present suit filed by respondents 1 and 2 barred under the principles of res judicata

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in view of the judgment in OS No.859 of 1983 and A.S. No.368 of 1994 between the

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same parties in respect of the schedule property?

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5. Have not the two courts below committed grave illegality in rejecting the claim of the appellants on the plea of adverse possession and limitation by excluding the period, during which the earlier suit was pending?

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The learned counsel for the plaintiff/1^st respondent alone appeared through Adv.R.T.Pradeep. Heard the learned counsel for the appellants as well as the learned counsel for the 1^st respondent. Lower court records were called for and perused.

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The main contention of the learned counsel for the appellants/defendants was with respect to the illegality committed by the Appellate Court in allowing I.A. No.1/2020 dated 06.10.2020. According to them, the Appellate Court went wrong in dismissing the appeal without giving opportunity to the appellants to read evidence consequent to the amendment and it has caused serious prejudice to them. It

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is also contended that the amendment allowed is in violation of the directions and stipulations contained in the judgment in RSA No.346/2008.

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It is also contended that the present suit was barred by Order 2 Rule 2 since they have not reserved the right to file fresh suit while dismissing the earlier suit. It is also his contention that the plaintiffs claim was barred by adverse possession and limitation and grave illegality has been committed by the courts below in excluding the period during which the earlier suit was pending.

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The learned counsel for the plaintiffs on the other hand would contend that both courts concurrently found in favour of the plaintiff and no prejudice has been caused due to the amendment carried out as per order in I.A. No.1/2020 dated 06.10.2020, since there is specific allegation regarding plaint A and B schedule property throughout the plaint.

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It has been specifically pleaded in the plaint that the plaint B schedule is the building situated in the plaint A schedule property. Even in the description of the plaint

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schedule also there is specific reference of 7 cents of property out of 16 cents situated on the western extremity and building therein. It is only because of the fact that the term 'B schedule' is not specifically stated in the plaint schedule it was subsequently amended after the remand. So, no prejudice has been caused to the defendants due to allowing the amendment as per the order in I.A. No.1/2020.

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On perusing the plaint schedule description also it is seen that the plaint schedule property has been described as 7 cents of property out of 16 cents and also the building situated therein. By the subsequent amendment B schedule property has been separately shown as the building situated in A schedule on its eastern extremity. So, as has been rightly contended by the learned counsel, since there is clear description of plaint B schedule as the building in the body of the plaint. The amendment carried out by incorporating it as B schedule will not cause any prejudice to the defendants. Though, it is contended that the amendment allowed is beyond the scope of the judgment in RSA No.346/2008, on going

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through the judgment in RSA No.346/2008, it could be seen that it was an open remand with a direction to dispose the appeal afresh and the findings in A.S. No.36/2004 with respect to resjudicata was set aside. It is also diserniable from the judgment in RSA No.346/2008 the first Appellate Court only considered the question of resjudicata and reversed the finding of the trial court and dismissed suit finding that the suit is hit by resjudicata. So, the order passed by the first Appellate Court after the remand in allowing I.A. No.1/2020 also cannot be said as beyond the scope of remand order and illegal or caused prejudice to the defendants.

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The question of resjudicata in entertaining the present suit in view of the judgment and decree in O.S. No.859/1983 has already been dealt with by this Court in judgment in RSA No.346/2008 dated 21.5.2020 by a learned Single Judge of this Court. The judgment of first Appellate Court in appeal from the judgment in O.S. No.859/1983 which is marked as Ext.A5 (A.S. No.368/1994) would go to show that for the reason that plaint B schedule building has not been

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specifically scheduled in the written statement wherein counter claim has been sought for, it has been found that there is violation of Order 7 Rule 3 and the first Appellate Court dismissed the counter claim also and thereafter the present suit has been filed by the plaintiff for declaration of title and recovery of possession of plaint B schedule property and consequential injunction.

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Nandakumaran Kartha v. Manian and others

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[2020 (2) KHC 455] has been quoted by the learned Single Judge and the relevant portion extracted reads thus:

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“S.11 CPC would come into play only when there is a finding and adjudication on a matter directly and substantially in issue in a former suit between the same parties or by any one litigating under them by a competent court. By virtue of Explanation (iv) to S.11 CPC, a matter which might or ought to have been made a ground of attack or defence in a former suit deemed to be a matter directly and substantially in issue in such suit, besides the impact of Explanation (v) to S.11 CPC. A dismissal of the suit, defect in the conduct of the suit, failure to address a defect or lack of territorial

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or pecuniary jurisdiction cannot be brought under the purview of S.11 of C.P.C. and the doctrine of 'res judicata' as embodied under S.11 of CPC would no come into play.”

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Since the counter claim in the earlier suit was dismissed on a formal defect for not incorporating the B schedule property specifically as contemplated under Order 7 Rule 3 and the dismissal was based on a technical ground without going to the merits of the disputes as has been found by the learned Single Judge in RSA No.346/2008, there is no resjudicata in filing the present suit in view of the judgment and decree in O.S. No.859/1983.

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The next contention of the learned counsel is with regard to the claim of adverse possession. The predecessor of the defendants filed O.S. No.859/1983 for declaration of title, recovery of possession and injunction. His contention was that he was holding and enjoying the plaint schedule property.

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The contention of the predecessor of the defendants in O.S. No.859/1983 was that, while the first plaintiff and her

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mother was enjoying the plaint schedule property as per otti kuzhikanam, document No.5256/1121, the brother of the first plaintiff constructed a building in the plaint schedule property and later the brother and his wife executed avakasha ozhimuri in favour of predecessor of the defendants on 12.1.1983 for Rs.1,750/-. Later jenmy of plaint A schedule property inclusive of B schedule sold to the predecessor of the defendants as per deed No.2344 dated 22.11.1983. But the defendants could not produce that document and the suit filed by them was also dismissed and as has been found concurrently by the courts below, the predecessor of the defendants have no claim that he obtained any right over the plaint A schedule property prior to 1983. It is the specific case of the plaintiffs that the predecessor of the defendants trespassed into the B schedule property on 10.11.1983.

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The defendants contended that since the plaintiffs admitted defendants possession on 10.11.1983 they have perfected title over the plaint B schedule property by adverse possession and limitation.

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Article 64 of the Limitation Act prescribes 12 years period for prescribing title based on previous possession. Here, the defendants predecessor alleged to have trespassed into the property on 10.11.1983 and the defendants also claims right over the plaint schedule property based on deed No.2344 dated 22.11.1983. But, in the earlier suit filed by the predecessor of the defendants it has been concurrently found against by two courts and that decision has become final as per Ext.A5 judgment on 25.8.2000 and the present suit was instituted in the year 2002.

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Section 14(1) of the Limitation Act is relevant to be extracted in this context, which reads thus:

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“in computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”

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In O.S. No.859/1983 filed by the predecessor of the

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defendants a counter claim was put forward by the plaintiff and her mother. Ultimately the suit was dismissed by the trial court and counter claim was decreed against which the predecessor of the defendants filed the appeal and in the appeal on technical ground the counter claim was also dismissed. So, the plaintiff herein has been prosecuting their right over the scheduled property by filing counter claim in O.S. No.859/1983 and that happened to be disposed in the year 2000. The present suit was filed in the year 2002. Hence, as has been rightly found by the courts below the period during which the previous suit was pending has to be excluded from computing the period of 12 years. Hence, it has been rightly found by the courts below that the plea of adverse possession raised by the defendants also will not stand.

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A contention was also raised by the learned counsel for the defendants with respect to bar under Order 2 Rule 2, since no liberty was obtained in A.S. No.368/1994 in filing the

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subsequent suit. But, it has already been discussed in the previous paragraph that the counter claim in O.S. No.859/1983 though decreed by the trial court it was dismissed by the first Appellate Court as per Ext.A5 judgment without going to the merits. Hence, the bar of resjudicata will not apply in entertaining the present suit. So, there is no application of Order 2 Rule 2 also in the present fact situation.

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Hence, it has been found concurrently by the courts below that the first plaintiff has title over the plaint A schedule property by virtue of Ext.A1 sale deed No.943/1978. Plaint B schedule is the part of plaint A schedule. Ext.A2 is the purchase certificate obtained by the mother of first plaintiff with respect to 16 cents of property which forms part of plaint A schedule property. Though the predecessor of the defendants set up a claim over 4 cents of property and the building thereon by virtue of document No.2344/1983 dated 22.9.1983 it has not been produced. The defendants also could not establish any right by way of adverse possession. So, also the claim based on title and adverse possession are mutually

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destructive. Both cannot go together. The claim for declaration of title and recovery of possession sought for by the defendants' predecessor has already been found against in O.S. No.859/1983 which was confirmed in Ext.A5 judgment also. So, the appellants/defendants could not establish any right over the plaint B schedule property. So, I do not find any illegality or irregularity in the concurrent findings entered into by the courts below.

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In the result, the appeal is found to be devoid of any merit and hence dismissed.

Sd/-

M.R.ANITHA

JUDGE

SMF

Pushpam v. Vilasini

Case brief

What is this about?

What did the court decide?

Pushpam v. Vilasini

Case brief

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What did the court decide?

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