Point of Law : Section 11 of Code of Civil Procedure is Res judicata.

JUDGMENT :

C. Jayachandran, J.

This appeal poses the question whether the judgment against one co-owner in a previous suit would operate as res judicata against the other in a subsequent suit? By the order impugned, the Forest Tribunal, Kozhikode dismissed O.A.No.41/2011 holding that the application is barred by the principles of res judicata, inasmuch as an earlier application, O.A.No.7/1986, preferred by the applicant's brother, a co-owner, was dismissed, which order (Ext.B3) had attained finality. The aggrieved applicant is the appellant.

2. The brief facts, shorn off unnecessary details, are as follows:-

The application is one under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, 'the Vesting Act'). The applicant averred that the scheduled property belongs to the applicant and the 4th respondent jointly. The property was being managed by the applicant's father, since he was employed at Gulf. The scheduled property was originally planted with cashew by the predecessors-in-interest of the applicant, whereafter, the same was converted into a rubber plantation. The disputed property is a cultivated land and not a private forest, which vested with the Government under the Act 26 of 1971. The forest officials obstructed the user of the property on 27.10.2011. The applicant also alleged that O.A. No.7/1986 was preferred by his brother/the 4th respondent herein without his knowledge and that the same happened to be dismissed, since it was not prosecuted properly by his brother. Even the title to the property was not pleaded. The order passed in the said O.A. is not binding on the applicant. On such premise, the applicant sought for a declaration that the scheduled property is not a private forest, which vested with the Government. Alternatively, the applicant claimed exemption under Section 3(3) of the Vesting Act.

3. The Divisional Forest Officer concerned filed counter affidavit contending that the scheduled property forms part of a huge malavaram known as Ex-Gwalior Rayons Forest, having an extent of 12215.68 hectares. It was notified as a vested forest as per notification no.82055/FS2-1/76/AD dated 11.1.1977. The property was not cultivated with cashew as on 10.5.1971. Nor was it converted to a rubber plantation thereafter. The respondent specifically pleaded that the present application is barred by res judicata in view of the Order passed in O.A.No.7/1986, which was confirmed by the High Court in M.F.A.No.496/1989 and thereafter, by the Hon'ble Supreme Court in S.L.P.No.22831/1997. On such premise, the respondent sought for dismissal of the O.A.

4. The evidence in this case consists of Exts.A1 to A19, supported by the oral evidence of the applicant, as PW1. On behalf of the respondent, the Forest Range Officer concerned was examined, through whom Exts.B1 to B4 were marked. The Commissioner's reports and plan were marked as Exts.C1, C2 and C2(a) respectively.

5. The Tribunal found, as it indicated earlier, that the present O.A. is barred by the principles of res judicata in view of the order in O.A.No.7/1986, which attained finality.

6. Heard Sri. Firoz K.M., learned counsel for the appellant and Sri. Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records.

7. We notice that the proceedings which led to Ext.B3 order was also under Section 8 of the Vesting Act preferred by the brother of the present applicant, the 4th respondent in the present O.A. The pleadings in O.A.No.7/1986 and the present O.A. are substantially similar, except in respect of an oral lease claimed from the Nilambur Kovilakam. In the earlier O.A. the lease was claimed in favour of the father of the applicant, whereas in the present O.A, the lease was in the name of one Aboobacker, who, in turn, entrusted the scheduled property in favour of the applicant and the 4th respondent in the present O.A. Suffice to note that in both the O.As, the applicant and the 4th respondent were pleaded to be co-owners