BY AD v. K.G.BALASUBRAMANIAN

BY ADVS. SRI.K.P.SURESH KUMAR – FOR R1 AND R2 P.V.CHANDRA MOHAN FOR R1 AND R2 SRI.G.SREEKUMAR (CHELUR) FOR R3 THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 598 OF 2020 3 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 learned counsel 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: RSA NO. 598 OF 2020 4 “(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 RSA NO. 598 OF 2020 5 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 RSA NO. 598 OF 2020 6 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 RSA NO. 598 OF 2020 7 sought therein were declaration of title and permanent prohibitory injunction. According to him, the right in respect of a pond also was claimed in the said suit and the trial court as well as the appellate court disallowed the prayer for prohibitory injunction on the finding that the pond had been used by the defendants in the said suit. According to the learned counsel for the plaintiffs, the present suit is based on a new cause of action, where recovery of possession of the property covered by Exts.A1 and A2, the title documents of the plaintiffs. He also submitted that even though issue of bar under Order II Rule 2 and resjudicata raised before the trial court as well as the appellate court, the same were negatived since the defendants did not produce copy of plaint and written statement in the earlier suit to establish the contentions.

11. Insofar as the questions of bar under Order II Rule 2 of CPC and resjudicata are concerned, the appellate court considered the said plea elaborately in paragraph Nos.10 to 13 and negatived the said plea for want of non-production of the copy of plaint in the present suit. RSA NO. 598 OF 2020 8

12. The sum and substance of the finding of the appellate court, relying on decisions of this Court, is that without production of plaint submitted in the earlier suit, it is difficult to hold whether the suit is barred by resjudicata or under Order II Rule 2 of CPC.

13. In this connection, it has to be held that since the pleadings and prayers in the previous suit could not be scanned, for want of production of copy of the plaint in the previous suit, it is difficult to consider the bar under Order II Rule 2 of CPC. The question of recovery of possession was not at all considered in the previous suit, going by Exts.B1 and B2 judgments. Therefore, the bar of resjudicata also could not be found.

14. Insofar as the bar under Section 34 of the Specific Relief Act is concerned, in the present suit, the same has no application, since the present suit is not one for any declaratory relief.

15. Coming to the crux of the matter, as regards RSA NO. 598 OF 2020 9 limitation also, going by the judgments, Exts.B1 and B2 it could not be inferred that the recovery of possession is a matter known to the plaintiffs in relation to the plot now identified as per Ext.C1(a). Therefore, the plea of limitation raised for the first time before this Court also could not be found in favour of defendants 1 to 3. As per Ext.C1(a) plan, the properties covered by Exts.A1 and A2 are located as properties having an extent of 51.40 cents as against a total extent of 56 cents (23+ 33) in Sy.Nos.216/4 and 216/5. It is true that, as pointed out by the learned counsel for defendants 1 to 3 that the extent of land as that of defendants also, as per their title deed (though not produced before the court), is 26.5 cents. However, the same is in Sy.No.216/3. The plaint schedule property, as I have already pointed out, is in Sy.Nos.216/4 and 216/5. Apart from that, the title of the plaintiffs over the plaint schedule property as per Exts.A1 and A2 had been declared and the said judgment attained finality. So by locating the plaint schedule RSA NO. 598 OF 2020 10 property as per Exts.A1 and A2 and the defendants property by locating, the same was 22.91 cents as per partition document No.980/70, as per Ext.C1(a) plan, it was found by the trial court that the orange coloured portion, having an extent of 1.24 cents, is liable to be recovered. On perusal of Ext.C1(a) plan, it appears that a small triangle portion of the pond, which was found to be used by the defendants in the earlier litigation, includes the orange coloured portion. Therefore, the pond shall be excluded from the purview of recovery to ensure use of the same by the defendants as well as the plaintiffs in common, in tune with the finding in Exts.B1 and B2. Therefore, I am inclined to modify the concurrent verdicts of the trial court as well as the appellate court in the above line.

16. In the result, this appeal stands allowed in part. It is ordered that the plaintiffs are entitled to get recovery of possession of orange coloured portion, excluding the triangle RSA NO. 598 OF 2020 11 portion form part of the pond. In all other respects, the decree and judgment are confirmed. All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed. Registry shall forward a copy of this judgment to the trial court for information and compliance. Sd/- A. BADHARUDEEN JUDGE