Constructive res judicata applies when prior suits address substantially similar issues, blocking later claims without new evidence of title or possession.

J U D G M E N T

The Second Appeal is drawn from the judgment and decree of the Fifth Additional District Court, Ernakulam in A.S. No.162 of 1993 confirming judgment and decree of the Third Additional Sub Judge, Ernakulam dismissing O.S. No.146 of 1985 which was for recovery of possession of the suit properties.

2. The following substantial questions of law are framed for a decision:

(i) When the previous suits referred to in the judgments of the courts below do not relate to the plaint schedule property and title to the plaint schedule property was not directly and substantially in issue in the said suits, can an independent enquiry regarding the said issue in the present suit be held to be barred in view of Explanation IV to Section 11 of the Code of Civil Procedure (for short, “the Code”)?

(ii) When there is direct evidence regarding title of the plaintiff and its predecessors over the plaint schedule property which is clearly identified with reference to the survey number, boundaries and extent, can the mention of a “Maradikavu” in the earlier proceedings without reference to the survey number, boundaries and extent of the property wherein the said “Kavu” is situated, be taken as a ground to bar the trial of the issue in the present suit?

(iii) Is not the 6th defendant who is setting up a rival title bound to prove the title of his family over the plaint schedule property by producing cogent evidence?

(iv) Whether the trial court was right in holding that the temple and its property are not transferable?

(v) Is the construction placed by the courts below on Exts.A2 and 5 sustainable and ought not the courts below have upheld validity of the documents they being only transfer of the right of management of the temple?

3. The appellant-plaintiff, South Maradi N.S.S.

Karayogam No.3520 claims title over item Nos.1 and 2 of the plaint schedule where the Maradikavu Bhagavathi Temple (for short, “the Temple”) is situated, as per Exts.A2 and A5, gift deed Nos.2074 and 2075 of 1982. Item No.1 is 16.1 Ares comprised in Sy. No.293/2/1 and a portion of the Temple. Item No.2 is 17 Ares comprised in Sy.No.293/2/2 and the remaining portion of the Temple. The appellant claims that the said Temple and properties belonged to a Nair Tarwad of the locality by name, Meppally Valiyedath Tarwad also known as Elavunkal Tarwad (for short, “the Tarwad). All sections of the Hindu community used to worship and offer vazhipadu in that Temple. There arose a situation that poojas in the Temple could be performed only with the offerings. On account of difficulties in the Tarwad, it could not attend to the affairs of the Temple. Vasudevan Kartha (P.W.2), a member of the Tarwad planted coconut saplings in the suit properties. Along with that, other people have also planted coconut saplings in the said properties by way of offering in the Temple. Devotees of the Temple constructed a Well. Poojas were being performed by the family of respondents 3 to 5 since long. Respondents 3 to 5 started appropriating the income from the Temple. Thereon a Committee by name “Kshethrabarana Samithy” was formed in the year, 1978 to conduct festivals in the Temple. The said Samithy consisted of Vasudevan Kartha, the 4th respondent and others. The Committee collected funds from the public (for conducting festivals). While so, difference of opinion developed among the committee members. The name of the 'Kshethrabharana Samithy' was changed to Kshethrasamrakshana Samithy (for short, “the Samithy”). Vasudevan Kartha withdrew from the said Samithy. The Samithy has no right over the Temple or its properties or for its day to day administration. While so, one M.S. Viswambaran renovated the existing Temple and constructed additional structures by way of offering, with the permission of Vasudevan Kartha. The Ezhava members of the Samithy took the stand that the Temple and the property belong to their Community. Respondents 3 to 5 also supported them. While so, Vasudevan Kartha and Madhavi K