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Periya Kelu Nair Son of Cheriya Amma Vs. Kariyappau Son of Maliga - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 402 of 1958
Judge
Reported inAIR1963Ker313
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantPeriya Kelu Nair Son of Cheriya Amma
RespondentKariyappau Son of Maliga
Appellant Advocate K.N. Karunakaran and; V. Balakrishna Eradi, Advs.
Respondent Advocate T. Chandrasekhara Menon, Adv.
DispositionAppeal partly allowed
Cases ReferredSatyadhyan Ghosal v. Smt. Deorajin Debi
Excerpt:
.....55 years as mortgagee and to surrender possession of the properties in the b-schedule, namely the suit properties. karunakaran on behalf of the appellant is that section 11 read with explanation iv of the code of civil procedure clearly bars the present suit. section 11, as is well-known, lays down that no court shall try any suit or issue, in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. a-1. the learned advocate contends further that, at any..........action by one of the trustees of a family deity by name raktheshwari, on the claim that the suit properties belonged to the bhandaram of the said deity. the other trustees were also impleaded as party defendants. 3. the facts necessary for the decision of the question before me may be stated. in 1900 the suit properties along with some others lying contiguous were mortgaged by the plaintiff's ancestors to a third party. in 1906 a further charge was created on the properties in favour of the same mortgagee. in 1943 the superior mortgage ext. 4-1 was executed in favour of the 1st defendant for rs. 1,500. in that document the properties were divided into two schedules a and b, the properties comprised in the b-schedule being the suit properties and the rest having put in the.....
Judgment:

T.C. Raghavan, J.

1. The main question in this case is whether the suit is barred fay res judicata by reason of a previous suit. Though some other questions have also been raised during the course of the fairly elaborate discussion at the bar, a closer scrutiny has revealed that only the question of res judicata need be considered, and therefore both the learned counsel have concentrated their attention on that question. Several decisions including a few of the Supreme Court and the Privy Council have been placed before me. I do not propose to consider all of them, because, according to me, the question would be clinched by the decisions of the Supreme Court, which I shall discuss hereinafter. There is a minor question regarding a house, which will also be adverted to in its proper place towards the close of the judgment.

2. The suit was laid for recovery of possession of the properties scheduled to the plaint and also for confirming the plaintiff's possession of a house therein and for mesne profits and other incidental reliefs. The appellant was the 1st defendant in the action and the respondent the plaintiff. The suit as ultimately emerged after an amendment of the plaint was a representative action by one of the trustees of a family deity by name Raktheshwari, on the claim that the suit properties belonged to the Bhandaram of the said deity. The other trustees were also impleaded as party defendants.

3. The facts necessary for the decision of the question before me may be stated. In 1900 the suit properties along with some others lying contiguous were mortgaged by the plaintiff's ancestors to a third party. In 1906 a further charge was created on the properties in favour of the same mortgagee. In 1943 the superior mortgage Ext. 4-1 was executed in favour of the 1st defendant for Rs. 1,500. In that document the properties were divided into two schedules A and B, the properties comprised In the B-schedule being the suit properties and the rest having put in the A-schedule. The mortgagee-1st defendant was authorised to redeem the earlier mortgages and to enjoy the properties in the A-schedule for 55 years as mortgagee and to surrender possession of the properties in the B-schedule, namely the suit properties. In pursuance of that document the 1st defendant filed O. S. Ho. 777 of 1943, obtained a decree for redemption of the earlier mortgages and entered into possession. Nevertheless, he did not surrender possession of the properties in the B-schedule to the trustees of the Bhandaram as provided under the covenant In Ex. A-7.

4. The 2nd defendant, who was described as the managing trustee and the ejaman of the family in Ex. A-1, filed O. S. No. 326 of 1950, which was later on renumbered as O. S. No. 197 of 1953, for redemption of the mortgage ignoring the term of 55 years, taking advantage of Section 9-A of Madras Act IV of 1938. In the schedule to the plaint in that suit all the properties, which were the subject-matter of the earlier mortgages, were included ignoring the division into A and B schedules under Ex. A-1.

The plaintiff in the present suit was also impleaded in that suit as a defendant on the allegation that he was a tenant in possession of a portion of the properties under the prior mortgagees. The suit was decreed and an appeal followed to the District Court of South Kanara. When the appeal was pending, the Malabar Tenancy Act was extended to the area in South Kanara, where the properties involved in the Appeal were situated. Taking advantage of that, the 1st defendant filed an additional written statement claiming that he was entitled to fixity of tenure under the Malabar Tenancy Act, that is, claiming that Ex. A-1 was not a mortgage but was a kanom kuzhixanom transaction. The Appellate Court thereupon framed additional issues regarding that question and called for findings from the Trial Court. One of the issues was whether Ex. A-1 was a kanom kuzhikanom document and whether the 1st defendant was entitled to fixity of tenure regarding the properties involved in that suit. The Trial Court submitted findings to the effect that the document evidenced a kanom kuzhikanom transaction and the 1st defendant was entitled to fixity of tenure. Thereafter, the Appellate Court allowed the appeal holding that Ex. A-1 was a kanom kuzhikanom transaction and the 1st defendant was entitled to fixity of tenure regarding the properties involved therein.

5. Pending the aforesaid proceedings the suit, which gave rise to the second appeal, was filed by the respondent for recovery of possession of the suit properties, namely the properties covered by the B-schedule in Ex, A-1, on the basis of the covenant in that document. The Trial Court dismissed the suit on a preliminary ground that the decree in O. S. No. 197 of 1953 was a bar to the suit. In appeal the learned District Judge of South Kanara set aside the said decree holding that unless and until the decision in O. S. No. 197 of 1953 became final, it could not be a bar to the subsequent suit. Both the appeals were disposed of on the same day.

6. Thereafter, the present suit was considered by the Trial Court on merits. The 1st defendant contended, inter alia, that the suit was barred by res judicata by reason cf the decree in the earlier suit O. S. No. 197 of 1953. This was rejected by the Trial Court; and in appeal the decision of the Triai Court was confirmed. In second appeal the same question is being reagitated.

7. The contention of Mr. K. N. Karunakaran on behalf of the appellant is that Section 11 read with Explanation IV of the Code of Civil Procedure clearly bars the present suit. Section 11, as is well-known, lays down that no Court shall try any suit or issue, in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV explains that any matter, which might and ought to have been made ground of defence or attach in such former suit, shall be deemed to have been a matter directly and substantially in issue in such suit. Therefore, the first question is whether the matter in issue in this suit has been directly and substantially in issue in the earlier suit. In considering the question of the matter being directly and substantially in issue, Explanation IV has to be considered as to what matter might and ought to have been raised as a ground of defence or attack in the earlier suit, and such matter shall be deemed to have been directly and substantially in Issue in that suit. The second question is whether the parties are litigating under the same title as they have been doing in the earlier litigation. These are the two questions to be considered in the present case.

8. According to Mr. Karunakaran, the trustees of the Raktheswari Bhandaram might and ought to have raised, as a ground of attack in the prior suit, the plea that the properties, which are the subject-matter of the present suit, were liable to be surrendered to them by the 1st defendant under the covenant in Ex. A-1. The learned advocate contends further that, at any rate, when the Appellate Court in the earlier suit framed additional issues regarding the applicability of the Malabar Tenancy Act to the properties involved therein (which included the properties in the present suit as well), the trustees should have raised the plea of the covenant in Ex. A-1, at least regarding the properties covered by the B-schedule thereof, in answer to the plea of the 1st defendant claiming fixity of tenure. That is how the learned counsel presents his case.

9. The first point, as indicated already, is whether the question regarding the recovery of possession of the properties in the B-schedule, namely the suit properties, was directly and substantially in issue in the earlier suit. Ac-cording to me, it was not. The question involved in that suit was whether the provisions of Ex. A-1 disclosed a mortgage or a kanom kuzhikanom transaction under the Malabar Tenancy Act. It was only a mistake, probably of both the parties, that the properties in the B-schedule were also included in that suit and allowed to be there, though that was only a suit for redemption of Ex. A-1, the properties in the B-schedule not being held under that mortgage. The trustees 'might' have pleaded in the earlier suit the covenant in Ex. A-1 and have claimed recovery of possession of the properties in the B-schedule on that plea; but that was not a plea which they 'ought' to have raised as a ground of attack or defence in that suit. What 'ought' to have been so made a ground would depend upon the particular facts of each case (vide Kameswar Pershad v. Rajkumari Rattan Koer, ILR 20 Cal 79 at p. 85). In my opinion any plea which, if taken, would have been inconsistent with, or destructive of, the right or title claimed in the earlier suit, is not a matter, which 'ought' to have been raised therein, even though it 'might' also have been raised, at least in the alternative.

10. I think it cannot be disputed that if a suit is brought for recovery of possession of a property on the basis of a lease and if the lease is found against and thus the suit is dismissed, another suit for recovery of possession of the property on the basis of title is maintainable. The second suit in such a case will not be barred by res judicata. Similarly, if a suit is brought for redemption of a mortgage and either the mortgage is not established or the property is not proved to have been included in the mortgage and for that reason the suit gets dismissed, then another suit for recovery of possession of the same property on the basis of title will not be hit by res judicata. In both these cases the right or title claimed in the prior suits being different from the right or title in the subsequent suits, though the plea based on title 'might' have also been raised in the earlier suits, it cannot be said that the said plea is a matter, which 'ought' to have been raised therein, for, that plea was inconsistent with the right claimed either as a lessor or as a mortgagor.

11. The next question then is: were the parties litigating under the same title in the earlier suit as they are now doing in this suit? To me it appears that the answer to this question is also in the negative. In the earlier suit the trustees of the Bhandaram were seeking, as mortgagors, to redeem and recover possession of the properties covered by Ex. A-1 from the mortgagee. In the present suit the title or the right that is claimed is as owners of the suit properties claiming recovery of possession thereof under the covenant in the deed.

12. Now I would consider some of the decisions cited before me, which, according to me, are relevant. In Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33, it was held that the test of res judicata was the identity of title in the two litigations and not the identity of the property involved in the two cases. In Sunderabai v. Devaji Shankar, AIR 1954 SC 82, the Supreme Court again held that the real ratio in such cases was that where the right claimed in both suits was the same, the subsequent suit would be barred by res judicata though the right in the subsequent suit was sought to be established on a ground different from that in the former suit. It was also held therein that it would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as res judicata even though the property was identical. In this later case their Lordships of the Supreme Court approved the decision of the Full Bench of the Lahore High Court in Mt. Sardaran v. Shiv Lal, AIR 1944 Lah 282. In this connection, I would also refer to an observation of the Supreme Court in Satyadhyan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941, that the principle of res judicata was based on the need of giving a finality to judicial decisions and what it said was that once a res was judicata, it should not be adjudged again, which means that when a matter -- whether on a question of fact or a question of law -- had been decided between two parties in one suit or proceeding and the decision was final, neither party would be allowed in a future suit or proceeding between the same parties to canvass the matter again.

13. I do not think that if these principles enunciated by the Supreme Court in the decisions quoted above are applied to the present case, the result would be different from the view I have already taken. Normally, in the present case two suits have to be filed. If the 1st defendant, after redemption of the earlier mortgages, refused to deliver possession of the properties covered by the B-schedule to the mortgagors, the latter have to file a suit for recovery of possession of the same; and for recovery of possession of the properties covered by the A-schedule they have to file another suit either on the expiry of the term of the mortgage or at an earlier date if any law gave them such a right as Section 9-A of Madras Act IV of 1938. In these two suits the right or the title claimed will be different; the causes of action will also be different.

14. One decision on which the appellant's learned advocate lays very great reliance is ILR 20 Cal 79. In that case a widow entitled to a widow's interest under the Hindu Law in some properties belonging to her deceased, husband incurred debts to the appellant and created a charge on the properties for the debt on 1st March 1872. On 31st August 1872 she entered into an agreement with the reversioner whereby she surrendered her interest in her husband's estate to him on condition that he had to pay her an allowance of Rs. 24,000/- for her maintenance and also to pay off her liabilities. On 31st March 1875 the appellant instituted a suit on the bond against the widow and the reversioner, which was decreed in terms of the plaint by the Trial Court, but was varied by the High Court confining the decree personally against the widow and dropping the charge against the estate. In the plaint there was no prayer for personal relief against the reversioner. That decision of the High Court was upheld by the Privy Council in 1880. In 1884 the appellant sought to proceed against the properties in the possession of the reversioner in execution of that decree, by which time the widow was dead. The execution Court disallowed execution against the properties in the possession of the reversioner except in respect of the personal properties left by the widow. Thereafter in 1887 the appellant brought another suit against the reversioner praying to have him declared liable under his agreement with the widow to satisfy the decree obtained against her on the bond. The Privy Council upheld the contention of res judicata and dismissed the suit. Their Lordships observed that the ground of attack in the subsequent suit was a good ground of attack in the earlier suit as well and that it might and ought to have been raised in the earlier suit. It is clear that in both the suits the right or title that was claimed was the right of a creditor against a debtor. The reversioner was a party to both the suits and therefore the claim against the reversioner should have been raised even in the earlier suit, especially in view of the fact that the agreement between him and the widow was in existence even at the time of that suit. Therefore, according to me, this decision does not lay down any principle different from the one laid down by the Supreme Court decisions already referred to.

15. I do not think I need consider the several other decisions cited and discussed at the bar in view of the decisions already considered.

16. The other question raised by the appellant's learned counsel is regarding the house in the property. Both the lower Courts have held that the house is situated in the suit properties. The Commissioner has submitted the plan Ex. A-7 and the report Ex. A-6. He was directed to locate the house with reference to Ex. A-1, i.e., whether it was in the A-schedule or in the 8-schedule. He has not done that with reference to Ex. A-1. What he has, on the other hand, done is merely to state that the plaintiff has been living in the house for a long time with the Bhandaram (the box for offerings) installed there and therefore the house must be in the B-schedule. Such an approach to the question is clearly wrong. The schedule to Ex. A-1 shows that there were two houses at the time of the document in the A-schedule and that there was no house in the B-schedule. The finding of the lower Courts that the house is in the B-schedule is thus wrong and the learned advocate of the respondent is not able to support that decision. It may be that the plaintiff was put in possession by the previous mortgagees. Therefore, the declaration sought by the plaintiff regarding the possession of the house cannot be granted. The result is that the demarcating line between the A and B-schedules will be the line X-Y in Ex. A-7 and not R--S. To this extent the decision of the lower Courts has to be varied,

17. The second appeal is therefore allowed in part holding that the appellant is entitled to recovery of possession of the house and the demarcating line between the A and B-schedule properties Is X--V in Ex. A-7. Regarding the mesne profits the decision of the lower Appellate Court that the question will be decided In execution will stand. In execution the question of mesne profits payable by the plaintiff to the 1st defendant for the house from the date of plaint to recovery of possession will also be considered and the execution Court will pass appropriate orders regarding both.

18. Since the appellant has succeeded in part, he is not liable to pay costs in any of the three courts. Each party will bear his costs throughout. No leave.


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