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2023 Supreme(Ker) 267
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R. ANITHA, J.
Bhargaviammal, W/o. Krishnan Achary @ Kittan Achary and Anr. – Appellants
Versus
Paramu Achary, S/o. Velu Achary (Died) and Anr. – Respondents
RSA No. 697 Of 2006
Decided On : 05-04-2023
For the Appellants : Sri. Philip M. Varughese.
For the Respondents: Sri. S. Mohanan, Sri. M. Narendra Kumar.
Point of Law: Section 32 of Evidence Act deals with cases in which statement of relevant facts by person who is dead or cannot be found etc. were relevant.
Headnote:
Hindu Marriage Act, 1955 - Section 16(1), 7 - Indian Evidence Act, 1872 - Section 32 (5 and 7), 114 - Code of Civil Procedure, 1908 - Section 11, Order 41 Rule 4, 33 - Property - Suit for declaration - Attempts to trespass into property - Plaintiffs in a suit for declaration of title setting aside a document and also for injunction – Property was in possession of first defendant and plaintiffs had no occasion to take yield from property - Para 45.
Finding of the Court: When two suits having common issues were decided on merits and appeal has been filed only against judgment and decree of one of them, decision in other case will operate as resjudicata, since common issues on merits have been tried and decided finally in a common judgment - Like wise when two appeals in which common issues arouse are decided by common judgment and decree from one of appeals alone is challenged, decision in other appeal will operate as resjudicata - So in order to apply principles prime elements is that two suits should have common issues - There is no common issues to be decided in O.S. - So at any rate non filing of appeal against judgment and decree in O.S. will not operate as res judicata against 2nd defendant in defending his claim in this appeal - There is no reason whatsoever to interfere with judgment and decree passed by 1st Appellate Court.
Result: Appeal dismissed.
JUDGMENT :
1. The Regular Second Appeal has been filed against the judgment and decree in A.S.No.31 of 1997 on the file of Additional District Court, Pathanamthitta which in turn arise out of the judgment and decree in O.S.No.39 of 1993 on the file of Munsiff's Court, Adoor.
2. Appellants are the plaintiffs in a suit for declaration of title setting aside a document and also for injunction. The trial court decreed the suit and the first appellate court reversed the judgment and decree passed by the trial court and dismissed the suit.
3. First plaintiff claimed to be the wife of Kittan Achari @ Krishnan Achari and 2nd plaintiff is the son born to them. The plaint schedule property was obtained by Kittan Achari as per release deed No.2214 /1960 executed by the first defendant, the brother of Kittan Achari on receiving consideration from the late Kittan Achari. Kittan Achari married the first plaintiff on 15.07.1971 as per customary rites at her residence at Cherunthana Village and thereafter executed Ext.A2 marriage agreement and registered at S.R.O Chengannur. Thereafter, they were residing in the small hut situated in the plaint schedule property along with the mother of Kittan Achari. On 10.03.1972, 2nd plaintiff was born. Kittan Achari died in the year 1973. Plaintiffs and the mother of Kittan Achari continued to reside in the house situated in the schedule property and while so, in the year 1978, the mother of Kittan Achari died. Thereafter, plaintiffs are the legal heirs of Kittan Achari and in possession and enjoyment of the plaint schedule property. Since the plaintiff could not maintain the hut situated in the plaint schedule property, it got perished and plaintiffs shifted their residence to nearby 'Laksham Veedu Colony' and continued to cultivate in the plaint schedule property. Defendants are residing on the eastern side of the plaint schedule property. There is a boundary separating the property of the plaintiffs and 2nd defendant. When the defendants made attempts to trespass into the plaint schedule property, the suit was filed.
4. Defendants 1 and 2 filed separate written statements. First defendant denied the entire plaint averments and rights and possession of the plaintiffs over the plaint schedule property. The entire plaint schedule property belong to the first defendant and he obtained the same along with his brother Kittan Achari and mother as per gift deed No.193/1120 M.E. After the death of Kittan Achari and mother, first defendant became the absolute owner in possession of the suit property. On 04.01.1993, he sold 15 cents out of 22 cents to 2nd defendant. The release deed alleged by the plaintiff never came into existence. Even if the release deed is admitted, the first defendant, being the sole legal heir of deceased mother and Kittan Achari, is the absolute owner of the property. 2nd defendant is trying to grab remaining 7 cents also with the help of plaintiffs 1 and 2. The marriage between the first plaintiff and Kittan Achari is denied and their residence in the suit property is also denied. 2nd plaintiff is not the son of Kittan Achari. Kittan Achari was suffering from diseases and died as bachelor. Hence the plaintiffs are not the legal heirs of Kittan Achari. She is living with her husband. The suit is filed at the instigation of the 2nd defendant.
5. 2nd defendant contended that he purchased 15 cents of property from the first defendant on 04.01.1993 and he is in possession and enjoyment of the said property. He is a bona fide purchaser of 15 cents of property and paid consideration of Rs.25,000/- to the first defendant. He had no knowledge about the release deed No.2214/1960. First defendant was in absolute possession and enjoyment of the said property and the plaintiff had no occasion to take yield from the said property for the last 30 years. After the death of mother, first defendant became the absolute owner of the property. All other allegations disputing the marriage of the plaintiff with Kit
