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2024 Supreme(Online)(KER) 52801
HIGH COURT OF KERALA
A. BADHARUDEEN, J
BHASKARAN NAIR – Appellant
Versus
DEEPA – Respondent
RSA 598/2020
K.G.BALASUBRAMANIAN, SMT.AMBILY (PREMKUMAR), SRI.K.P.SURESH KUMAR, P.V.CHANDRA MOHAN, SRI.G.SREEKUMAR (CHELUR)
The court clarified that without prior plaint production, res judicata and Order II Rule 2 CPC cannot be applied, and the current suit is not barred by limitation or the Specific Relief Act.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 r/w Order XLII Rule 1 - Specific Relief Act, 1963 - Suit for fixation of boundary, recovery of possession, and permanent prohibitory injunction - The appellate court found that the previous suit did not bar the current suit under Order II Rule 2 or res judicata due to lack of evidence - The court ruled that the present suit is not barred by limitation and the bar under Section 34 of the Specific Relief Act is inapplicable as it does not seek declaratory relief. (Paras 4, 10, 14, 15)
(B) Limitation - The court held that the plea of limitation raised for the first time could not be found in favor of the defendants as the recovery of possession was not known to the plaintiffs in relation to the identified plot. (Paras 15)
Facts of the case:
The plaintiffs filed a suit asserting title over the property and seeking recovery of possession, which was denied by the defendants citing previous litigation. The trial court and appellate court found the suit was not barred by res judicata or limitation.
Findings of Court:
The appellate court modified the lower court's decision, allowing recovery of possession of a specific portion while confirming the rest of the decree.
Issues: The main issues included whether the suit was barred by the Specific Relief Act and limitation, and whether res judicata applied.
Ratio Decidendi: The court emphasized that without the previous plaint's production, it could not determine the applicability of res judicata or Order II Rule 2, and clarified that the current suit was based on a new cause of action.
Result: Appeal allowed in part.
| Table of Content |
|---|
| 1. suit for boundary and possession (Para 5) |
| 2. defendants dispute possession (Para 6) |
| 3. appellate court's consideration (Para 11 , 12) |
| 4. no res judicata without plaint (Para 13 , 14 , 15) |
| 5. appeal allowed in part (Para 16) |
JUDGMENT
Dated this the 16th day of January, 2024 Defendants 1 to 3 in O.S.No.1055/2013 on the files of the Munsiff's Court, Kodungallur, have filed this regular second appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure (hereinafter referred to as 'CPC' for short), challenging the judgment and decree dated 31.08.2019 in A.S.No.162/2017 on the files of the Additional Sub Court, Irinjalakkuda.
2. Heard the learned counsel for the defendants/appellants as well as the learned counsel appearing for the plaintiffs. Defendant No.6 also was heard.
3. I shall refer the parties in this regular second appeal as 'plaintiffs' and 'defendants' for convenience.
4. As per order dated 01.10.2020, my learned predecessor admitted this appeal, raising the following substantial questions of law:
“(a) Whether, on the facts and in the circumstances of the case, were not the courts below in error in holding that the suit was barred by the proviso to section 34 Specific Relief Act ?
(b) Are not the decrees of the courts below liable to be modified in the light of the decision reported in 2007(3) KHC 51: Sarojini Vs.Ramanunni Moothath ?
(c) Was not the present suit barred by limitation, having been filed beyond three years from date of dismissal of AS 10/1991 and 12 years from date of dismissal of OS 198/1985?”
5. This is a suit for fixation of boundary, recovery of possession and permanent prohibitory injunction filed by the plaintiffs after asserting title over the plaint 'A' schedule property, on the strength of document Nos.131/1991 and 1067/1992 of Mathilakam SRO. According to the plaintiffs, on the western side of plaint 'A' schedule property, the property of the defendants is situated and there is no exact boundary separating both items of property. The demand for fixing boundary was denied and accordingly, the present suit was necessitated.
6. Defendant Nos.1 to 4 filed written statement as well as additional written statement after amendment of the plaint disputing possession over the entire property on the strength of the title deeds relied upon by the plaintiffs. Defendants pointed out filing of O.S.No.198/1985 before the Munsiff's Court, Kodungallur, with respect to the same properties for declaration and permanent prohibitory injunction. Though the suit was decreed in part and appeal therefrom as A.S.No.10/1991 was dismissed at the instance of the predecessor of the plaintiffs, according to the defendants the present suit is barred under Order II Rule 2 of CPC as well as resjudicata. Accordingly, the defendants prayed for dismissal of the suit.
7. The trial court recorded evidence confined to that of PW1 and PW2. Exts.A1 to A10 were marked on the side of the plaintiffs. No oral evidence was let in by the defendants and Exts.B1 and B2 were marked on the side of the defendants. Ext.C1 commission report and C1(a) sketch were marked.
8. At the time of hearing, the learned counsel for defendants 1 to 3 given much emphasis to the bar under Order II Rule 2 CPC as well as the bar under Section 34 of the Specific Reliefs Act, 1963.
9. It is pointed out that the verdicts of the trial court as well as the appellate court could not be justified in view of the ratio of the decision reported in 2007 (3) KHC 51 ( Sarojini Vs.Ramanunni Moothath ). The learned counsel for defendants 1 to 3 also argued that the present suit is barred by limitation since the same was filed 12 years after the date of dismissal of O.S.No.198/1985.
10. Resisting the contentions raised at the instance of defendants 1 to 3, the learned counsel for the plaintiffs submitted that though the earlier suit as O.S.No.198/1985 was filed by the predecessor of the plaintiffs, the reliefs sought therein were declaration of title and
