Gopinathan And Ors vs Rajamma And Ors

This Regular Second Appeal is filed against the judgment and decree in AS No. 222 of 1992 dated 17.11.2020 of the Addl. District Court-V, Thiruvananthapuram (hereinafter referred to as, "the first appellate court"), which arose from the judgment and decree in OS No. 60 of 1991 dated 21.12.1991 of the First Addl. Munsiff Court, Neyyattinkara (hereinafter referred to as, "the trial court"). The parties are hereinafter referred to as "the plaintiffs" and "the defendants" according to their status in the trial court unless otherwise stated.

The trial court passed a common judgment dated 21.12.1991 in OS Nos. 60 of 1991 and 438 of 1990 respectively. In OS No. 438 of 1990, the 1st appellant herein is the plaintiff. The said suit was for declaration of title or consequential injunction simplicitor, restraining the plaintiffs in OS No. 60 of 1991 from trespassing into the suit property. OS No. 60 of 1991 was for declaration of plaintiffs' title, recovery of possession and injunction. The suit property in both the above cases is an area of 5½ cents of land and a small building therein. The trial court dismissed both the suits for want of evidence to prove the identity of the property.

The judgment and decree in OS No. 438 of 1991 has become final as no one has preferred any appeal against the judgment and decree. However, the plaintiffs in OS No. 60 of 1991 preferred an appeal before the Addl. District Court-V, Thiruvananthapuram challenging the judgment and decree of the trial court. Before the appellate court, the appellants produced certain documents with an application to admit the same to prove the identity of the suit property. The appellate court marked those additional documents as Exts.A9 to A13 in its judgment dated 21.06.2001. The first appellate court allowed the appeal, setting aside the judgment and decree passed by the trial court. Hence, the 1st defendant preferred SA No.829 of 2001 before this Court, challenging the judgment and decree passed by the first appellate court. The said second appeal was dismissed on 23.07.2013. The 1st defendant had filed RP No. 452 of 2014 in SA No. 829 of 2001 on the ground that the first appellate court had committed grave error in admitting the additional documents, Exts.A9 to A13. This Court allowed the review petition and by judgment dated 03.07.20202 in SA No. 829 of 2001, set aside the judgment and decree of the first appellate court dated 21.06.2001 and remanded the matter to the first appellate court for consideration afresh. After the remand, the first appellate court heard the appellants and the respondents and dismissed IA No. 1587 of 1996. However, the appeal was allowed by the judgment dated 17.11.2020. The defendants have preferred this appeal challenging the judgment and decree dated 17.11.2020.

The plaint averments, in brief, are herein below;

The plaint schedule property is comprised in Re. Sy. No. 456/1 (Old Sy. No.200/32) of Kollayil Village having an extent of 5½ cents including a house bearing door No. VIII/312. Plaintiffs' father, viz., Harris, S/o Habel, obtained kudikidappu right over 4¼ cents in Old Sy. No.200/32 pursuant to the proceedings in OA No.169/1976 of the Land Tribunal, Neyyattinkara. The plaintiffs' father was the absolute owner in possession of the property and the plaintiffs' father assigned the plaint schedule property having an extent of 5½ cents lying in Old Sy. No. 200/32 of Kollayil Village to the plaintiffs as per Sale Deed No. 2075/1989 of Amaravila Sub Registrar Office. Till the execution of sale deed No. 2075/1989, the plaintiffs' father, Harris, was in possession and enjoyment of the plaint schedule property and after the execution of the sale deed, the plaintiffs have become the absolute owners in possession of the plaint schedule property. The plaintiffs have been residing in the building situated in the plaint schedule property and there are well-demarcated boundaries on all the sides. The defendants are trying to trespass and making obstructions to the peaceful possession and enjoyment of the plaint schedule property. Initially, the suit was filed for permanent prohibitory injunction and the later, the suit was amended incorporating the prayer for declaration of title and recovery of possession of the suit property on the strength of title.

Defendants 1 and 2 filed written statement contending that the 1st defendant is residing in the building situated in the plaint schedule property for the past 25 years as kudikidappukaran. Harris, S/o Habel, had no right over the property. The plaint schedule property is having well defined boundaries on all the sides. The defendants are in possession and enjoyment of the plaint schedule property. The 1st defendant filed an independent OA No.469 of 1989 before the Land Tribunal to purchase kudikidappu right over the plaint schedule property and the same is pending adjudication. When the plaintiffs made an attempt to trespass into the property, the 1st defendant filed OS No.438 of 1990 before the 1st Addl. Munsiff's Court, Neyyattinkara and obtained an order of interim injunction restraining the plaintiffs from trespassing into the plaint schedule property in OS No.438 of 1990 of the 1st Addl. Munsiff's Court, Neyyattinkara.

The trial court tried both suits jointly, treating OS No. 60 of 1991 as the leading case. The 1st plaintiff in OS No. 60 of 1991 was examined as PW1 and one witness was examined as PW2 and marked Exts.A1 to A8 on plaintiffs' side. The 1st defendant in OS No. 60 of 1991 was examined as DW1 and one witness was examined as DW2. Exts.B1 to B8 were marked on the defendants' side.

Heard Sri.SV Rajan, the learned counsel for the appellants; and Sri.Jomy George, the learned counsel for the respondents.

The unsuccessful plaintiffs in OS No. 60 of 1991 preferred an appeal before the first appellate court. Initially, the appeal was allowed, against which the 1st defendant preferred SA No. 829 of 2001 before this Court. This Court set aside the judgment of the first appellate court and remanded the matter to the first appellate court. Subsequently, first appellate court again allowed the first appeal. The defendants have preferred this appeal challenging the judgment and decree of the first appellate court. Although the unsuccessful plaintiffs in OS No. 60 of 1991 preferred an appeal, the unsuccessful plaintiff in OS No. 438 of 1990, who is the 1st defendant in OS No. 60 of 1991, did not file any appeal challenging the dismissal of OS No. 438 of 1990. Hence, the decree and judgment in OS No. 438 of 1990 has become final.

Sri.S.V.Rajan, the learned counsel for the appellants, contended that the phraseology "suit" in Section 11 of CPC is not limited to the court of first instance or trial court, but, encompasses within its domain proceedings before the appellate courts and the decree is valid unless it is a nullity and the same cannot be overruled or interfered with the appellate proceedings initiated against another decree in view of the decision of the apex court in Sri Gangai Vinayagar Temple & Another v. Meenakshi Ammal & Others [(2015) 3 SCC 624]. The learned counsel for the appellants further contended that there is a serious clash of identical suits with respect to the same property and resurvey numbers as found by the trial court.

The defendants filed OS No. 60 of 1991 before the First Additional Munsiff's Court, Neyyattinkara for declaration of title, recovery of possession and injunction with respect to the property having a total extent of 5½ cents comprised in Old Sy. No.200/32 (Re.Sy.No.456/1) of Kollayil Village together with a building bearing door No.VIII/312. The plaintiff filed OS No. 438 of 1990 before the 1st Addl. Munsiff, Neyyatinkara against the defendants for injunction in respect of the very same property on the strength of title and possession. Admittedly, the plaint schedule property is common in the above cases.

11.The defendants claimed title to the property by virtue of Ext.A1 sale deed, which was executed in favour of their father, Harris, on 04.10.1990, whereas, the plaintiffs filed a suit for declaration of title and recovery of possession and injunction in OS No. 60 of 1991. Both the suits were dismissed. The plaintiff in OS No. 438 of 1990 did not challenge the judgment and decree in OS No. 438 of 1990, whereas the plaintiffs in OS No. 60 of 1991 challenged the judgment and decree in OS No. 60 of 1991. The first appellate court entered a finding that the unchallenged decree operates as res judicata in the present appeal. This legal position has been explained by a Full Bench decision of this Court in Janardhanan Pillai v. Kochunarayani Amma [1976 KHC 81]. Paragraph 12 of the judgment reads as follows;

"12. In cases where two or more suits between the same parties relating substantially to the same matter are decided and only one of them is challenged by way of appeal, we fail to see how it can be said that the decisions are simultaneous and hence there can be no bar of res judicata. If the party takes up in appeal only one of the decisions, the others become final. The question, then, for consideration would be whether these decisions which have become final operate as res judicata. The question of res judicata would arise for determination only when the appeal against the connected decision is taken up for consideration. That will necessarily be at a subsequent point of time. At that moment there would be earlier decisions which have become final. The question whether the decision from which appeal has been filed and the decisions which have become final were rendered simultaneously would then be really irrelevant. Within the meaning of Explanation I of S.11 of the Code of Civil Procedure the decision which becomes final by being not appealed against becomes an earlier decision in a matter directly and substantially in issue in the former suit and operates as res judicata. This is notwithstanding the very serious consequences that the party who has filed appeal against one only of the two decrees may have to face. It is not as it his right of appeal becomes unavailable to him because of the bar of res judicata. He has the right to have his appeal taken up and considered, but he cannot get relief to the extent the question in issue which calls for decision in the appeal cannot be considered on the merits by reason of the bar of res judicata. The very rule of res judicata is a technical rule which precludes a party who may have a case from prosecuting his case with a view to obtain relief. It serves the larger interest of public policy by promoting the rule that there must be an end to litigation and a security to the litigant. No man should be vexed twice over the same cause is a rule founded on ancient precedents dictated by wisdom. If the party to the decree would be bound by the decree if he does not challenge the decree he must face the consequences of his failure to appeal against it, such consequence being the finality thereof. Such finality would debar a decision afresh on the question even if it be in an appeal against a simultaneous decision. We do not see justification to import any rule of expediency to the context."

The very same legal position has been discussed by the apex court in Sri Gangai Vinayagar Temple & Another's case (supra). Paragraphs 26 and 27 and relevant in this context, which are extracted as herein below;

"26. On the other hand, the verdict of Full Bench of the Allahabad High Court in Zaharia v. Debia and decisions of the Calcutta High Court in Isup Ali v. Gour Chandra Deb and of the Patna High Court in Gertrude Oates v. Millicent D'Silva are of the contrary persuasion. These decisions largely proceeded on the predication that the phraseology "suit" is not limited to the court of first instance or trial court but encompasses within its domain proceedings before the appellate courts; that non-applicability of res judicata may lead to inconsistent decrees and conflicting decrees, not only due to multiplicity of decrees but also due to multiplicity of the parties, and thereby creating confusion as to which decree has to be given effect to in execution; that a decree is valid unless it is a nullity and the same cannot be overruled or interfered with in appellate proceedings initiated against another decree; that the issue of res judicata has to be decided with reference to the decrees, which are applealable under Section 96 CPC and not with reference to the judgment (which has been defined differently), but with respect to decrees in CPC; that non-confirmation of a decree in appellate proceedings has no consequence as far as it reaching finality upon elapsing of the limitation period is concerned in view of Explanation II of Section 11, which provides that the competence of a court shall be determined irrespective of any provisions as to right of appeal from the decision of such court; and that Section 11 CPC is not exhaustive of the doctrine of res judicata, which springs up from the general principles of law and public policy.

Procedural norms, technicalities and processual law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute becoming subjudice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the courts by Section 151 CPC, as clarified by this Court in Chitivalasa Jute Mills v. Jaypee Rewa Cement. In the instance of suits in which common issues have been framed and a common trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not intend to whittle down the principle that the appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross-objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a "former suit". If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. The statutory law and the processual law are two sides of the judicial drachma, each being the obverse of the other. In the case on hand, had the tenant diligently filed an appeal against the decree at least in respect of OS No. 5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all."

Relying on Sri Gangai Vinayagar Temple & Another's case (supra), the learned counsel for the appellants, Sri.S.V.Rajan, contended that the principles of res judicata are not applicable in this case as the trial court has not considered the question of kudikidappu right in accordance with the scheme of the Kerala Land Reforms Act. It is further contended that the trial court has no jurisdiction to the decide the question of kudikidappu right. Hence, the bar of res judicata is not applicable. Going by the trial court judgment, it is clear that five issues were framed by the trial court in OS No.438 of 1990. The issues are as follows;

"(1) Whether the defendant has kudikidappu rights over the plaint schedule?

(2) Whether the injunction sought for is to be granted?

(3) Reliefs and costs?

Addl.(4) Whether the plaintiffs are entitled to declaration of their title and possession?

Addl.(5) Whether the plaintiffs are entitled to recovery of possession?"

14.In OS No. 60/1991, the trial court found four issues as follows;

"(1) Whether the plaintiff is entitled to declaration as prayed for?

(2) Whether the injunction prayed for is allowable?

(3) Reliefs and costs?

Addl.(4) Whether the plaintiffs have title and possession over the plaint schedule property?"

These issues were answered by the trial court, holding that reference to the Land Tribunal was not warranted as an independent OA between the parties was pending before the Land Tribunal. The trial court also answered that the question does not arise for consideration. Subsequently, negativing the contentions of the plaintiff, the trial court dismissed OS No. 438 of 1990. Similarly, the issue of title over the plaint schedule property was discussed in OS No. 60 of 1991 and held that the plaintiffs have no title to the property. Accordingly, both suits were dismissed. Challenging the above, the plaintiffs in OS No.60 of 1991 preferred an appeal, whereas the 1st defendant, who filed OS No. 438 of 1990, has not chosen to file an appeal. Thus, the finding in OS No. 438 of 1990 has become final. The trial court has entered a finding that the plaintiffs in OS No. 60 of 1991 had no title to the property and the defendants in OS No. 438 of 1990 had no title or possession over the property. Both title and possession were found against, holding that the parties in both the suits are out of possession of the suit property and are fighting a battle for a third person's property. Thus, it is clear that there is a clear cut finding that the defendants in OS No. 438 of 1990 have not been in possession of the suit property on the date of the said suit. Since no appeal has been preferred challenging the judgment and decree in OS No. 438 of 1990, the judgment and decree in the said case operate as res judicata in the appeal filed challenging the judgment and decree in OS No. 60 of 1991. The legal proposition in this regard is well-settled.

On a perusal of the pleadings of the parties, the contents of the documents produced by them and the issues framed by the trial court, it is very clear that the judgment and decree in OS No. 438 of 1990 has not been appealed against; and hence, the defendants are precluded from asserting title and possession over the suit property or the kudikidappu right claimed by them, which has become final by virtue of the judgment and decree in OS No. 438 of 1990.

The trial court meticulously analyzed Ext.A1 title deed of the plaintiffs and held that the plaintiffs have title to the property. The plaintiffs purchased the plaint schedule property from Harris, S/o Habel as per Ext.A1 sale deed dated 04.10.1989. Harris, S/o Habel is also the father of the 1st defendant. Immediately after the execution of Ext.A1 sale deed, the 1st defendant submitted an application on 08.10.1989 before the Land Tribunal for kudikidappu right in favour of the 1st defendant. In Ext.A1, it is stated that the owners of the suit property are plaintiffs 1 and 2. In Ext.A2 tax receipt dated 21.01.1989, Harris paid tax for an extent of 2.25 ares of property comprised in Re.Sy.No.456/1. The first appellate court has taken into consideration Ext.A5 Assessment Register for the period from 1983-88 and Ext.A6 Building Assessment Register from 1988-93 and held that the plaintiffs' predecessor has been in possession of the plaint schedule property prior to Ext.A1 sale deed and continued their possessory title over the plaint schedule property. On an analysis of the entire facts and circumstances, the first appellate court, on merits, held that the 1st defendant had no right or possession over the suit property and that his title and possession was found against in OS No. 438 of 1990. Initially, the present appellants were aggrieved for the reason that the first appellate court admitted certain additional documents. Hence, RSA No. 829 of 2001 was filed before this Court and this Court remanded the case to the first appellate court for consideration afresh. After the remand, the first appellate court dismissed IA No. 1587 of 1996 and allowed the appeal on merits. The learned counsel for the appellants contended that the trial court decided OS No. 438 of 1990 erroneously. However, the judgment and decree in the said case stand. The judgment and decree are not a nullity in the eye of law. On a consideration of the entire facts and circumstances including the pendency of an independent OA before the Land Tribunal, the trial court entered a finding that the question of tenancy does not arise for consideration and the 1st defendant has been out of possession of the suit property on the date of institution of OS No. 438 of 1990. Hence, the trial court entered a finding that the 1st defendant has not been in possession of the suit property on the date of suit and the 1st defendant has been clamouring for the property of a third person on untenable grounds. So long as this finding stands, no doubt, the finding will operate as res judicata in view of the dictum laid down in Janardhanan Pillai's and Sri Gangai Vinayagar Temple's cases (supra).

A second appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the court cannot expand the scope of the appeal. It is not open to the defendants to re-agitate facts or to call upon the High Court to re-analyse or re-appreciate evidence in a second appeal. In the case on hand, both the trial court and appellate court relied on the oral evidence of PWs 1 and 2 and Exts. A1 to A8, DWs 1 and 2 and Exts.B1 to B8 and dismissed both OS Nos. 60 of 1991 and 438 of 1990 by way of common judgment dated 21.12.1991. The plaintiffs in OS No. 60 of 1991 alone preferred an appeal challenging the judgment and decree.

To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. As stated earlier, in a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact that the 1st defendant has not been in possession of the suit property on the date of suit and the defendants had no cause of action to institute OS No.438 of 1990 has become final and it is not open to challenge the finality of the proceeding even if the appreciation of the evidence or the findings therein are apparently wrong. There is no debatable issue before this Court, which is not covered by settled principles of law or precedents.

The first appellate court examined the evidence on record in OS No. 60 of 1991 and arrived at a reasoned conclusion that the plaintiffs are entitled to declaration of title over the plaint schedule property by virtue of Ext.A1 sale deed. Accordingly, the first appellate court allowed recovery of possession of the plaint schedule property from the defendants. Initially, the appellants preferred an appeal before this Court and set aside the judgment of the first appellate court to consider IA No. 1587 of 1996. It was dismissed after having heard both sides and the first appeal was allowed on merits. The defendants preferred this second appeal challenging the decree of the first appellate court on merits. The suit is of the year 1991. Since the questions of law canvassed before this Court have already been settled by the Full Bench of this Court and the apex court, the findings of facts and the law rendered by the first appellate court do not warrant interference in a second appeal.

For the reasons discussed above, the R.S.A. is dismissed. There will be no order as to costs. Pending applications, if any, stand disposed of.