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Gopalkrishna Gupthan Vs. Ammalu Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 415 of 1969
Judge
Reported inAIR1972Ker196
ActsEvidence Act, 1872 - Sections 40 to 42 and 43; Malabar Land Registration Act, 1896 - Sections 19
AppellantGopalkrishna Gupthan
RespondentAmmalu Ammal and ors.
Appellant Advocate A.S. Krishna Iyer and; A.K. Ramaseshadri Nathan, Advs.
Respondent Advocate K.P. Radhakrishna Menon, Adv. (for No. 1) and; K.K. Ravindra Nathan, Adv. (for No. 2)
Excerpt:
- - in such circumstances much importance cannot be given to statements in pattas like ext......dismissed by the munsiff and that decision was confirmed in appeal by the subordinate judge.2. the suit property is that block-cid in section nos. 210/3 and 211 in kadambazhipram village. it belonged to kongat valiya nair. in 1881 he demised it on kanam to one krishnan moothan and by successive assignments evidenced by ext. a-2 of 1919 and ext. a-3 of 1930 the rights of krishnan moothan devolved on the plaintiff's father. by ext. a-4 of 1933 the kanam was renewed. in ext. a-13 partition made in the plaintiff's family the property was set apart to the share of the plaintiff. in 1961 the second defendant, whose mother is the first defendant, trespassed upon the property and cut and removed timber saying that the property belonged to the first defendant. it was on these allegations that the.....
Judgment:

Narayana Pillai, J.

1. This appeal by the legal representative of the deceased plaintiff arises from a suit for injunction filed before the Munsiff, Ottapalam. The suit was dismissed by the Munsiff and that decision was confirmed in appeal by the Subordinate Judge.

2. The suit property is that block-cid in Section Nos. 210/3 and 211 in Kadambazhipram Village. It belonged to Kongat Valiya Nair. In 1881 he demised it on kanam to one Krishnan Moothan and by successive assignments evidenced by Ext. A-2 of 1919 and Ext. A-3 of 1930 the rights of Krishnan Moothan devolved on the plaintiff's father. By Ext. A-4 of 1933 the kanam was renewed. In Ext. A-13 partition made in the plaintiff's family the property was set apart to the share of the plaintiff. In 1961 the second defendant, whose mother is the first defendant, trespassed upon the property and cut and removed timber saying that the property belonged to the first defendant. It was on these allegations that the plaintiff prayed for injunction restraining the defendants from trespassing upon the property and interfering with his peaceful possession of the same.

3. The contest of the defendants is confined to the property blocked in Survey No. 211. They denied the plaintiff's title to and possession of that property. They admitted that the property belonged to Kongat Valiva Nair. According to them he demised the property on kanam to one Unni Ezhuthassan in 1912. Ext. B-3 being a copy of the kanam document. Unni Ezhuthassan and another person executed a kanam document in respect of the property to one Kuttan Moothan in 1913. Ext. B-21 being a copy of that document. After Kuttan Moothan's death his rights in the property by the provisions of a will executed by him devolved upon one Kunha. By assignment her rights devolved on the first defendant. Thereafter, according to the defendants, the first defendant is in possession of the property.

4. The decrees of the lower Courts as they now stand negative the claimsof the plaintiff for both survey numbers, 210/3 and 211. As regards the property blocked in S. No. 210/3 the defendants do not dispute the title of the plaintiff and his possession of the same. In such circumstances the lower Court should have granted a decree to the plaintiff at least in respect of that property.

5. As regards the property comprised in S. No. 211 relief by way of injunction can be granted to the plaintiff only if he was in possession of it as alleged. Even if he had title to it unless it is proved that he was in possession also as alleged injunction cannot be granted.

6. Both the courts have freely used the findings in the judgments in a previous suit, O.S. 109 of 1954, to show that the first defendant had title to and possession of the property. Exts. B-16 and B-19 are respectively copies of the trial and appellate Court judgments in that suit. That was a suit for injunction filed by the present first defendant against the plaintiff's brother's son regarding this property and another item. Therein the trial Court found that the Present first defendant had title to and possession of the property and that was confirmed in appeal. That is a non-inter partes judgment, plaintiff not being a party to that suit.

7. I shall now consider the relevancy of non-inter partes judgments which has been the subject of some controversy. The Evidence Act does not make a distinction between judgments inter partes and judgments non-inter partes. It only says as to when judgments are relevant whether they are inter partes or non-inter partes. Section 43 of the Evidence Act says that judgments other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of those judgments is a fact in issue or they are relevant under some other provisions of the Act. Sections 40, 41 and 42 read thus:

'40. The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial.

41. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

Such judgment order or decree is conclusive proof-

that any legal character which it confers accrued at the time when such judgment, order or decree came into operation;

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the lime from which such judgment, order or decree declares that it had been or should be his property.

42. Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the enquiry but such judgments, orders or decrees are not conclusive proof of that which they state.'

They deal with judgments which operate as res judicata, judgments in rem and judgments which relate to matters of a public nature. Of course judgments may be admissible under Section 13 of the Evidence Act to show that a right was asserted or denied by a party or to introduce a fact in issue or to explain the history of a case. But that is different from admitting the judgment for the purpose of acting on the correctness of the findings entered therein. By the production of the previous judgment under Section 13 it is not the correctness of the previous decision but only the fact that there has been a prior decision that is established. There is no presumption that a prior judgment is a correct adjudication. The law only says that you cannot go behind it in certain cases. That is only on the ground of pubilc policy. Such judgments are judgments which operate as res judicata and judgments in rem. Judgments qua judgments and as expression of the opinion of the Court which pronounces them are relevant only under Sections 40 - 42. Judgments not coming under Sections 40 - 42 are not relevant at all in respect of opinion expressed therein. They can amount only to opinion evidence and opinion evidence is generally inadmissible. Such opinion evidence is however admitted under Section 45 of the Evidence Act when the court has to form an opinion upon a point of foreign law, or of science or art or as to identity of handwriting but in such cases it is the duty of the court to scrutinise the soundness or validity of the opinion evidence exercisingits own independent judgment. In the case of a previous judgment such scrutiny is impossible because the court trying the subsequent case cannot reopen the case and hear it on the merits as if the court is hearing an appeal or is retrying the previous case on fresh evidence. The court in the subsequent case has to decide it on the materials before it exercising its own independent judgment. Therefore my conclusion is that judgments qua judgments and as expression of opinion of the courts which pronounced them are not relevant at all except under Sections 40 - 42 of the Evidence Act.

8. Exhibits B-16 and B-19--judgments do not come under Sections 40 - 42 of the Evidence Act and consequently the findings entered therein about title to and possession of the property blocked in S. No. 211 are not relevant at all.

9. It is seen from the evidence in the case that disputes about title to and possession of this property had arisen from 1954 onwards. S. No. 211 as such is not included in Exts. A-1 to A-3. According to the plaintiff this property is included in items 4 and 5 in Ext. A-1. He admitted in his deposition as P. W. 1 that the total extent of that property was 16 odd acres. Yet the total extent of that property as mentioned in Ext. A-13, the partition deed relied upon by the plaintiff, is 25 odd acres and P. W. 1 admitted that he was not in possession of any land in excess of that covered by Exts. A-1 to A-3.

10. Ext. A-8 is the patta for the property issued in 1944. The property is shown there as belonging to Kongattil Nair and in the possession of the plaintiff. The weight to be given to entries in a patta would depend upon the circumstances under which the patta was issued. In the Malabar area pattas were issued as per the provisions of the Malabar Land Registration Act, III of 1896. Section 6 of that Act provided that the enquiry preceding the issue of patta was to be made by the Collector in a summary manner. Section 19(c) of that Act expressly says that nothing done under the Act would affect the rights of any person in the land. The issue of patta under the Act is only for the purpose of collection of revenue. In such circumstances much importance cannot be given to statements in pattas like Ext. A-8 about possession of the property.

11-15. [After considering the evidence on record his Lordship proceeded : ]

16. The lower courts were right in finding in favour of the defendants on the question of possession of the property blocked in S. No. 211. At the same time it was unnecessary for those courts to have entered findings about the title tothe property because the suit was one for injunction based on possession.

17. In the result the judgments and decrees of the lower courts are modified as follows. Injunction as prayed for in the plaint is granted in respect of the property blocked in S. No. 210/3. The finding of the lower courts on the question of title to the property blocked in S. No. 211 are set aside and they are left open for decision in appropriate proceedings. To the above extent alone this appeal is allowed. In all other respects it shall stand dismissed. The parties are directed to suffer their costs in this court.


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