(1) Can a civil court grant leave to file a suit otherwise than under Order XXIII Rule 1(3) CPC?

(2) Is an observation made by a court in the judgment of dismissal that another suit on the same subject matter by the plaintiff will not be barred by res-judicata, valid?

2. Challenging the judgment and decree passed by the Additional District Court, Neyyattinkara in AS No.290/2010, the plaintiff in OS No.206/1994 of the I Additional Munsiff’s Court, Neyyattinkara has come up in Second Appeal. Originally, OS No.206/1994 was filed as a suit for perpetual injunction and subsequently it was amended by incorporating the relief of declaration of the title and possession of the plaintiff over the plaint schedule property having an extent of 50 cents in Survey No.172/5 of the Kadavattaram Desom. She traces her title through Exts.A1 and A2. Ext.A1 was executed by one Chellan Nadar in favour of the additional 2nd plaintiff. Originally, the present appellant alone was the plaintiff. Later, her mother was impleaded as the additional 2nd plaintiff. The additional 2nd plaintiff had settled the property in favour of the appellant.

3. During the course of the suit, the 2nd additional plaintiff died and no other legal representatives were there to be impleaded. According to the appellant, she is the sole title holder in possession of the plaint schedule property and therefore, she wants to get her title declared. The plaintiff claims that the cause of action of the suit had arisen on 21.03.1994, 22.03.1994 and thereafter, by alleging that the defendant had attempted to commit trespass into the plaint schedule property on 21.03.1994 and thereafter.

4. The defendant resisted the suit and filed a written statement as well as additional written statement. It was contended that the suit is not maintainable and that the plaint schedule property is not identifiable. It is contended that no such property as claimed in the plaint schedule is in existence. According to the defendant, there is a total extent of 22 acres and 52 cents of property lying contiguously in survey Nos.172/5, 170/2, 170/5, 172/1, 172/2, 172/3, 172/4 and 174/2. The said property is situated in different planes. The predecessors-in-interest of the plaintiff and the defendant used to possess and enjoy the said property by possessing different planes. They have divided their interests separately and possessed such planes separately through such a partition by conduct. The said partition was approved by the Munsiff’s Court, Neyyattinkara as OS No.582/1057 ME.

5. It is also contended that in case the plaintiff wants to claim any specific right over the property, she ought to have filed a suit for partition of the entire property called ‘Kannerthattu’ by impleading all the persons, who have interest in the property. The property named ‘Kannerthattu’ situated in survey No.172/5 had exclusively devolved on Karuman Karuman, Kutty Pakyanathan and Kutty Yacob. Karuman Karuman was entitled to ½ share, Kutty Pakyanathan was entitled to ¼ share and Kutty Yacob also was entitled to ¼ share. Karuman Karuman or their successors-in-interest have never entered into a partition of the ‘Kannerthattu’. Chellan Nadar, who is the Vendor of the additional 2nd plaintiff, along with others were the Vendees in respect of the ½ share belonged to Karuman Karuman.

6. The successors-in-interest of Karuman Karuman had no right to convey title over a specific plot out of the ‘Kannerthattu’. Chellan Nadar himself and his successors-in-interest had in prior suits admitted that any specific plots were not allotted to them out of the ‘Kannerthattu’ and therefore, Chellan Nadar could not have transferred any specific plot to the additional 2nd plaintiff. Therefore, the additional 2nd plaintiff or the appellants have not derived any title or possession over any specific plot of property out of ‘Kannerthattu’. The interest of the patta holders in ‘Kannerthattu’ still remain as oodukoor.

7. Regarding the entire property,