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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.ANIL KUMAR, J.
P.K.GOPI, S/O.KRISHNAN KUTTY - APPELLANT
Versus
GOPINATHAN, S/O.NANU - RESPONDENTS
RSA No.463 OF 2021
Decided On : 12-07- 2021
Civil Procedure Code,1908 - Section 11 - Suit for recovery of possession and consequential permanent prohibitory injunction - Bank loan by mortgaging properties - Sale consideration - Suit was filed by plaintiff alleging plaint schedule property having an area of 8 cents along with eastern 10 cents originally belonged to the defendants - Accepting entire sale consideration for entire area of 18 cents defendants 1 and 2 handed over possession of entire property to the plaintiff at rate - Agreed that a document would be executed later as and when demanded by plaintiff since they availed of a bank loan by mortgaging the properties - Plaintiff had to accept - Ext.A2 sale deed was executed in favour of the plaintiff with respect to 10 cents on which suit was withdrawn as not pressed –
Finding of the Court:
Plaintiff was not decided on merits, requirement of Section 11 of C.P.C. cannot be said to have been satisfied and second suit is not barred by the principles of res judicata - Order 2 Rule 2 of the C.P.C. confers certain privileges in favour of the plaintiff who brings suit, but simultaneously it imposes a restriction in bringing another suit for which any of reliefs which he could have prayed in the earlier suit - Appellate court concurrently held that the plaintiff had not been in possession of the suit property in part performance of contract prior to the institution of suit - Trial court and the first appellate court concurrently declined the prayer for recovery of possession on strength of previous possession –
Result: Appeal is dismissed
Key Points: - The judgment discusses that when the earlier suit was not decided on merits, Section 11 CPC cannot bar a second suit, but Order 2 Rule 2 may restrict splitting of reliefs; (!) - It analyzes that if both suits arise from the same cause of action and relate to the same reliefs, Order 2 Rule 2 can bar the subsequent suit unless a party relinquishes or withdraws a portion of the claim with permission, or the prior suit was not pressed; (!) (!) - The case concerns a suit for recovery of possession and injunction where possession and part performance were contested, with findings that earlier possession or non-pressing of the prior suit impacted the applicability of res judicata and Order 2 Rule 2; (!) (!) (!) - The appellate and trial courts held the suit barred under Order 2 Rule 2 due to prior proceedings and possession findings; the High Court affirmed the dismissal; (!) - The record shows Ext.A2 sale deed and prior settlements impacted the propriety of subsequent possession claims; (!) (!) - The decision emphasizes that where the two suits are inherently similar and based on the same cause of action, subsequent relief claims are barred; (!)
JUDGMENT :
1. This Regular Second Appeal is directed against the judgment and decree dated 14.10.2020 in A.S.No.46/2017 on the file of the Additional District Court-III, Mavelikara (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 16.7.2015 in O.S.No.252/2013 on the file of the Munsiff's Court, Mavelikara (hereinafter referred to as 'the trial court').
2. The above second appeal arises from a suit for recovery of possession and consequential permanent prohibitory injunction. The appellant and the respondents herein are the plaintiff and defendants 1 to 3 respectively in the suit. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court wherever the context so requires.
3. The suit was filed by the plaintiff alleging that the plaint schedule property having an area of 8 cents along with the eastern 10 cents originally belonged to the defendants 1 and 2. On 20.3.2000, after accepting the entire sale consideration for the entire area of 18 cents, the defendants 1 and 2 handed over possession of the entire property to the plaintiff at the rate of Rs.5,000/-per cent. It was agreed that a document would be executed later as and when demanded by the plaintiff since they availed of a bank loan by mortgaging the properties. While so, at the intervention of mediators, the defendants 1 and 2 executed Ext.A1 agreement on 11.9.2012 agreeing to execute the sale deed within 6 months admitting the receipt of entire sale consideration. Later, the defendants 1 and 2 unilaterally resiled from the contract which necessitated the filing of O.S.342/2012. At the intervention of mediators, the defendants 1 and 2 executed sale deed with respect to eastern 10 cents to which the plaintiff had to accept. Accordingly, on 11.3.2013, Ext.A2 sale deed was executed in favour of the plaintiff with respect to 10 cents on which date the suit was withdrawn as not pressed. The original of Ext.A1 was taken back by the defendants 1 and 2. On 11.3.2013 itself, the defendants 1 and 2 executed Ext.A3 settlement deed in favour of the 3rd defendant. In spite of Ext.A3, the plaint schedule property was in the possession of the plaintiff. On 15.3.2013, the plaintiff was forcibly dispossessed by the defendants. Hence the suit was filed for recovery of possession and consequential injunction.
4. The defendants 1 and 2 filed a joint written statement contending that the suit is barred by principles of res judicata and Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'the C.P.C.') They denied the receipt of sale consideration from the plaintiff as per Ext.A1 agreement. According to them, the plaintiff was only permitted to reside in the shed in the plaint schedule property. The plaintiff approached the defendants 1 and 2 for purchasing the plaint schedule property and an agreement was executed for sale at the rate of Rs.7,000/-per cent. But the plaintiff could not raise the amount agreed and thus he could not perform his part of agreement. Thereafter the plaintiff filed O.S.No.342/2012 for specific performance of Ext.A1 agreement dated 11.9.2012. Due to the intervention of the mediators, the defendants 1 and 2 agreed to sell eastern 10 cents and accordingly Ext.B1 was executed. Thereafter, the suit was withdrawn as not pressed. The defendants 1 and 2 did not forcibly take the original of Ext.A1 as stated by the plaintiff. The plaint schedule property absolutely belonged to the defendants 1 and 2 and they had every right to execute Ext.B1 in favour of their son, the 3rd defendant. The plaintiff sold 7 cents out of 10 cents and he tried to construct a house in the remaining 3 cents which was found insufficient. The defendants 1 and 2 opposed the attempt of the plaintiff to encroach upon their property. The plaintiff has no cause of action to institute the suit and the suit is liable to be dismissed.
5. Before the trial court, PWs.1 to 4 wer
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