The principles of res judicata cannot bar a suit where previous findings are not binding, allowing for re-evaluation of property title and measurements.

JUDGMENT :

EASWARAN S., J.

The plaintiff aggrieved by the concurrent findings in O.S No.455/2000 on the files of the Principal Munsiff Court, Kochi and in A.S No.104/2004 on the files of the Sub Court, Kochi, approached this Court with the present appeal.

2. The brief facts necessary for the disposal of the appeal are as follows:-

The plaint schedule property having an extent of 13 cents and 104 ½ square feet together with structures were obtained by the plaintiff as per Sale Deed No.2446/1981. As per Sale Deed No.109/1989 dated 10.01.1989, an extent of 73.95 square meter was sold in favour of one Pakkai. On 27.04.1989, the plaintiff and defendants entered into an agreement of sale of 5 cents, together with a building for a total sum of Rs.1 lakh. However, it is contended that at the time of registration, the defendants wanted only the building situated in the property and therefore a Sale Deed No.1488/1989 was executed, transferring right title and interest over 1 cent for a sum of Rs.49,600/-. However, the plaintiff later found out that there is a mistake in the extent of property in Sale Deed No.1488/1989. Therefore, the suit was filed for declaration of title, recovery of possession and injunction, stating that the defendants had only derived right title over 1 cent of land as per Sale Deed No.1488/1989. The defendants entered appearance and contested the case and contended that in an earlier suit as O.S No.93/1993, the Munsiff Court, kochi, had found the possession of the defendants over entire extent of property and in the said suit, the plaintiff herein contended that the defendant/ the plaintiff therein had only title over an extent of 1 cent. Though, in a suit for injunction, the question of title was gone into and it was found that the defendants were in possession, having title over 5 cents of land. The said judgment was also confirmed by the Lower Appellate Court. It was further contended that the suit was barred by limitation. The plaintiff, subsequent to the execution of the sale deed in favour of the defendants, had settled the balance property in favour of his daughter as per Settlement Deed No.2860/1990 dated 25.08.1990 and in the said Settlement Deed it is specifically mentioned that, what is transferred in the favour of the daughter of the plaintiff is the balance 7 cents. Therefore, the defendants prayed for dismissal of the suit. On behalf of plaintiff, Exts.A1 to A18 were produced and PW1 to PW3 were examined. On behalf of defendants, Exts.B1 to B10 were produced and DW1 was examined. Exts.C1 to C2(c) are the reports and sketches prepared and submitted by the Advocate Commissioner. The trial court on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff has not made out a case and therefore dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiff preferred A.S No.104/2004 and the Lower Appellate Court found that the present suit was barred by res judicata, inasmuch as the issue was concluded in O.S No.93/1993. Accordingly, dismissed the appeal against which the present Regular Second Appeal is preferred.

3. When the appeal was admitted to file, by order dated 29.05.2012, this Court framed the following substantial questions of law:-

i) Has not lower appellate court committed an error of law in proceeding as though the extent of property conveyed by the document of title of the defendant cannot be re-agitated as a suit based on title?

(ii) Is lower appellate court justified in ignoring the legal impact of the agreements for sale with Philomina and defendant and the consideration recited therein as relevant for determining the extent conveyed