The High Court of Kerala dismissed a second appeal against a judgment barring a property suit by res judicata and limitation. The Court held the subject matter was identical to earlier suits filed by the appellant's father.
Appeal dismissed in limine holding the suit barred by res judicata and limitation.
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 MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 28 T H DAY OF MAY 2024 / 7TH JYAISHTA, 1946
RSA NO. 242 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 26.02.2011 IN OS
NO.163 OF 2008 OF MUNSIFF COURT, PAYYANNUR
ARISING OUT OF THE JUDGMENT AND DECREE DATED 18.11.2023
IN AS NO.31 OF 2011 OF SUBORDINATE JUDGE'S COURT,
PAYYANNUR
APPELLANT/APPELLANT/PLAINTIFF:
KAITHAKKAL JOSE, AGED 70 YEARS S/O. CHANDY, AGRICULTURE, VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511
BY ADVS.M.SASINDRAN SATHEESHAN ALAKKADAN
RESPONDENTS/RESPONDENTS AND SUPPLEMENTAL RESPONDENTS/ DEFENDANT NOS.2 AND 3 AND LEGAL HEIRS OF 1ST DEFENDANT:
1 NEDUMPALLIL VALSAMMA AGED 74 YEARS W/O. JOHN, AGRICULTURE, VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511
3 SHERIN AGED 49 YEARS D/O. NEDUMPALLIL JOHN, NO EMPLOYMENT, RESIDING AT VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511
4 ROJIN, AGED 46 YEARS D/O. NEDUMPALLIL JOHN, NO EMPLOYMENT, RESIDING AT VAYALAYI, PULINGOME AMSOM DESOM, P.O.CHUNDA, KANNUR DISTRICT, PIN - 670511
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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C.S.SUDHA, J.
R.S.A.No.242 of 2024
Dated this the 28 th day of May 2024
J U D G M E N T
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the plaintiff/appellant is against the judgment and decree dated 18/11/2023 in A.S.No.31/2011 on the file of the Subordinate Judge's Court, Payyannur, which appeal in
turn is against the judgment and decree dated 26/02/2011 in O.S.No.163/2008 on the file of the Munsiff Court, Payyannur.
The parties and the documents will be referred to as described in O.S.No.163/2008.
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in O.A.No.6209/1976 by the Land Tribunal, Taliparamba. Out of the said three acres, the plaint A schedule property was gifted to the plaintiff as per document no.2151/2004 of S.R.O., Peringome. Since then the plaintiff has been in possession and enjoyment of the property. The properties of defendants 1 and 2 are situated on the eastern and western side of the plaint A schedule property. The river on the northern side of the plaint A schedule property is vested in the third defendant panchayat. The plaint B schedule, part of plaint A schedule property, is not river pur amboke .
2.1. Defendants 1 and 2 filed a false suit, that is,
O.S.No.114/1988, alleging attempt of trespass into their property by the plaintiff's father. Before filing the said suit, defendants 1 and 2 colluding with the then Taluk Surveyor, Taliparamba in an application to fix the northern boundary of the property, removed some of the survey stones and fixed the survey boundary about 75 links to the further south of the existing survey boundary, which was against the field measurement book and plan. On the basis of
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the wrong fixation of the boundary line, O.S.No.114/1988 came to be partly decreed in favour of defendants 1 and 2. First appeal, A.S.No.3/1991 and the second appeal, S.A.No.714/1995 affirmed the decree of the trial court. The judgment of the second appeal was dated 07/04/2008. By misusing the order of injunction obtained in O.S.No.114/1988, defendants 1 and 2 committed damage in the property. After the survey boundary had been wrongly fixed by the then Taluk Surveyor, Taliparamba, the Tahsildar as per notice dated 15/08/1988 informed the parties that the northern survey line of R.S.No.90/1 had been re-fixed and any person aggrieved by the same could file an appeal before the District Survey Superintendent. Accordingly, the plaintiff's father filed ALC.86/88 D8. Pursuant to the same, the District Survey Superintendent measured the property and refixed the survey line and survey stones in accordance with the field measurement book and passed an order to the said effect on 20/10/1992. These facts had been reported by the Advocate Commissioner in
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O.S.No.132/1991 filed by the plaintiff's father. It was only because the Advocate Commissioner in O.S.No.114/1988 inspected the property when the survey stones and the survey boundary had been wrongly fixed by the Surveyor, he happened to submit a report and plan based on the wrong survey boundary, on the basis of which the suit came to be wrongly decreed in favour of defendants 1 and 2. The plaintiff's father was unable to bring the real facts to the notice of the appellate court including the refixation of the survey boundary and hence the decree of the trial court came to be wrongly confirmed by the appellate courts also. In none of the earlier cases, third defendant panchayath was a party. The decree passed in O.S.No.114/1988 and confirmed in the first and the second appeals, has cast a cloud on the title and possession of the plaintiff over the plaint schedule property and therefore the suit for declaring that t he survey boundary shown by the Advocate Commissioner in O.S.No.132/1991 to be the actual survey boundary. As the panchayath was not a party in the earlier
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proceedings, there is no bar in filing a fresh suit and hence the suit.
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O.S.No.349/2001 and O.S.No.110/2002. All the said suits were tried jointly and dismissed. Appeals against the said decree, namely A.S.No.112/2003, A.S.No.113/2003 and A.S.No.114/2003 filed against the said judgment and decree are pending. A portion of the plaint schedule property in the suits filed by the plaintiff's father was transferred to the plaintiff. The gift deed relied on by the plaintiff was created for the purpose of creating a fresh cause of action. The allegation that the defendants had colluded with the then Taluk Surveyor, Taliparamba and had got the survey boundary wrongly fixed is incorrect and false. O.S.No.110/2002 had been filed by the plaintiff's father for a declaration that the refixation of the survey boundary as per the order of the District Survey Superintendent, was infact the actual survey boundary. The said suit after trial was dismissed. The subject matter in the present suit and in the suits filed by the plaintiff's father is one and the same and hence the suit is barred by res judicata.
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denying the allegations in the plaint and also contending that the suit is barred by res judicata as the dispute relating to the subject matter had already been adjudicated in O.S.No.114/1988 which judgment and decree has obtained finality in Second Appeal No.714/1998.
side of the plaintiff. No oral evidence was adduced by the defendants. Exts.B1 to B3 were marked on the side of the defendants. The report and plan of the Advocate Commissioner were marked as Exts.C1 to C3.
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barred by res judicata . The trial court also found that the suit is barred by limitation and that plaintiff had failed in establishing the identity of the property. The judgment and decree of the trial court has been confirmed by the first appellate court against which the present second appeal has been filed.
well as the appellate court grossly erred in holding the suit to be barred by the principle of res judicata . Relying on the dictum in Vaish Aggarwal Panchayat v. Inder Kumar, [(2020)12 SCC
809] it was argued that when a decree has been obtained by fraud, the principle of res judicata is not applicable. It was also submitted that the earlier decree happened to be passed in favour of defendants 1 and 2 due to the fraudulent act of the then Taluk Surveyor, Taliparamba, in wrongly fixing the survey boundary. To a query by this Court as to whether his predecessor-in-interest had raised such a contention in the earlier suits, it was submitted that
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though raised, it was never considered by the trial court or the appellate court and hence there is no bar in filing the present suit. If such a contention had been taken up and the same had not been considered by the trial court, the same ought to have been challenged in the appeal. Instead of resorting to said course, the plaintiff cannot file a fresh suit on the ground of fraud alleged to have been committed by the Taluk Surveyor in wrongly fixing the survey boundary. The case of the plaintiff is not that the decree in the earlier suits was obtained by fraud or collusion between the parties to the litigation. On the other hand, his case is that the survey boundary line was wrongly fixed by the then officer concerned colluding with defendants 1 and 2. Therefore the dictum relied on by the learned counsel for the plaintiff/appellant is not applicable to the facts of the present case.
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have been filed by the father of the plaintiff and that it was subsequent to the same and after the decree in the second appeal, the gift deed was executed by the father in favour of the plaintiff relating to a portion of the disputed property. It is also not disputed that the relief claimed in the present suit is the very same relief claimed by his father from whom he obtained plaint A schedule property. As per Section 11 CPC, the principle of res judicata comes into play when the matter was 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 the subsequent suit or the suit in which such issue had been subsequently raised and has been heard and finally decided by such Court. The plaintiff has no case that the courts which decided the earlier suits were not competent. Admittedly the earlier suits were filed by the plaintiff's father through whom the plaintiff claims title and possession over the disputed property. The property or the subject
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matter involved in the present suit and the earlier suits are also admittedly the same. That being the position, the principle contemplated under Section 11 CPC is clearly attracted. The trial court and the first appellate court has properly and correctly appreciated the oral and documentary evidence in arriving at such a conclusion.
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admission/compromise/settlement made without obtaining instructions from the client would not bind the party.
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The plaintiff never had a case that he was not aware of the fixation or refixation of the survey boundary till the filing of the present suit or that he came to know about the fixation of the boundary much later on. As noticed earlier in O.S.No.110/2002 filed by the plaintiff's father, the relief sought for was to declare that the order of the District Survey Superintendent refixing the survey boundary was the correct boundary. The said suit was admittedly dismissed. The trial court therefore found that the cause of action in the present suit which is the same as in the earlier suits filed by the father of teh plaintiff, had arisen in the year 1992 itself. However, the present suit was filed only in the year 2008 and therefore the suit was clearly barred by limitation. I do not find any error or mistake committed by the trial court in arriving at such a finding. Both the courts on a thorough appreciation of the oral and documentary evidence has rightly arrived at the conclusion that the suit is barred by res judicata ; filed beyond the period of limitation and also that the plaintiff had failed in
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establishing the identity of plaint B schedule property. No substantial q uestions of law as contemplated under Section 100
arises in this second appeal and hence the appeal is liable to be
dismissed in limine and I do so.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE
ami/
2 issues framed by the court
Whether the suit is barred by res judicata and limitation.
Whether the fraud allegation regarding survey boundary fixation invalidating the bar of res judicata.
Colour shows how this judgement treated each authority
Vaish Aggarwal Panchayat v. Inder KumarReferred¶61
Vaish Aggarwal Panchayat v. Inder Kumar, [(2020)12 SCC 809] · Who else cites this
Jayaprakash K.R. v. State of KeralaReferred¶73
Jayaprakash K.R. v. State of Kerala (2023(4) KHC 354)
3 provisions across 2 enactments
KAITHAKKAL JOSE
NEDUMPALLIL VALSAMMA
THE SECRETARY CHERUPUZHA GRAMA PANCHAYAT
SHERIN
ROJIN
C.S. SUDHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
