NUJUMUDEEN v. SADANANDAN & Ors.

CRP.No. 645 of 2010 ( ) APPENDIXPETITIONER'S ANNEXURES:ANNEXURE-A1:COPY OF THE SALE DEED NO.1556/2007 DATED 05.07.2007 OF THE KAYAMKULAM SUB REGISTRY.ANNEXURE-A2:COPY OF THE PARTITION DEED 6350/1120 M.E.WITH A LEGIBLE COPY(COLLECTIVELY).ANNEXURE-A3:COPY OF THE BUILDING PERMIT NO.BA 538/07-08 DATED 29.01.2008 ISSUED BY KAYAMKULAMMUNICIPALITY.ANNEXURE-A3(a):COPY OF THE OCCUPANCY CERTIFICATE DATED 19.05.2008, ASSESSMENT ORDER DATED 21.05.2008 AND PROPERTY TAX RECEIPT 5084 DATED 15.09.2010 ISSUED BY -DO- COLLECTIVELY.ANNEXURE-A4:COPY OF THE SALE DEED NO.1207 DATED 05.04.1986 OF THE KAYAMKULAM SUB REGISTRY.ANNEXURE-A5:COPY OF THE SALE DEED NO.235/2003 DATED 29.01.2003 OF -DO-ANNEXURE-A6:COPY OF THE ROUGH SKETCH OF PLAINT A-SCHEDULE INOS.162/08 OF MUNSIFF'S COURT, KAYAMKULAM.ANNEXURE-A7:COPY OF THE DEPOSITION OF THE 1ST RESPONDENT AS PW1 IN OS 282/1996 OF MUNSIFF'S COURT, KALAYMKULAM, WITH A LEGIBLE COPY(COLLECTIVELY)ANNEXURE-A8:COPY OF THE WRITTEN STATEMENT FILED BY KOYAKUTTYAS THE 1ST RESPONDENT, ON 30.07.1980, IN OS.NO.24/1980 OF SUB COURT, MAVELIKARA.ANNEXURE-A9:COPY OF THE COMMISSION REPORT FILED BY SRI.G.RAMAN PILLAI ADVOCATE ON 31.07.1996 IN OS NO.172/1996 OF THE MUNSIFF'S COURT, KAYAMKULAM.ANNEXURE-A10:COPY OF THE JUDGMENT DATED 19.03.2005 IN OS 282/1996 OF -DO-.ANNEXURE-A11:COPY OF THE DECREE DATED 19.03.2005 IN -DO-.ANNEXURE-A12:COPY OF THE JUDGMENT DATED 29.01.2008 IN AS 86/2005 OF THE DISTRICT COURT, MAVELIKARA.ANNEXURE-A13:COPY OF THE JUDGMENT DATED 19.03.2008 IN RSA 287/2008 OF THE HONOURABLE HIGH COURT OF KERALA.ANNEXURE-A14:COPY OF THE PLAINT DATED 20.07.1996 IN OS.282/1996 OF THE MUNSIFF'S COURT, KAYAMKULAM.DG -2-CRP.No. 645 of 2010 ( ) ANNEXURE-A15:COPY OF THE WRITTEN STATEMENT DATED 11.07.1997 OF DEFENDANTS 1 & 2 IN -DO-.ANNEXURE-A16:COPY OF THE COMMISSION REPORT DATED 21.03.1996 WITH A ROUGH SKETCH, FILED BY SRI.PHILU MATHEW, ADVOCATE IN OS.111/1996 OF -DO-.ANNEXURE-A17:COPY OF THE PLAINT DATED 31.03.2008 IN OS.162/2008 OF -DO-ANNEXURE-A18:COPY OF THE WRITTEN STATEMENT DATED 23.05.2006 FILED BY THE REVISION PETITIONER AS THE 5TH DEFENDANT IN -DO-.ANNEXURE-A19:COPY OF THE WRITTEN SATEMENT OF RESPONDENTS 2 TO5 AS DEFS.2TO 5 DATED 30.06.2008 IN -DO-.ANNEXURE-A20:COPY OF THE JUDGMENT DATED 08.11.1996 IN OP 16305/1996 OF THE HONOURABLE HIGH COURT OF KERALA.ANNEXURE-A21:COPY OF THE APPEAL FILED BY THE PLAINTIFF BEFORETHE GOVERNMENT ON 28.09.1996.ANNEXURE-A22:COPY OF THE GO(R) 564/97/LAD DATED 07.02.1997.ANNEXURE-A23:COPY OF THE JUDGMENT DATED 24.02.1997 IN OP3422/1997 OF THE HONOURABLE HIGH COURT OF KERALA.ANNEXURE-A24:COPY OF THE JUDGMENT DATED 19.02.1998 IN WA 927/1997 OF -DO-.ANNEXURE-A25:COPY OF THE I.A.224/2010 FILED BY THE REVISION PETITIONER AS THE 5TH DEFENDANT IN O.S.162/2009 OF MUNSIFF'S COURT, KAYAMKULAM.ANNEXURE-A26:COPY OF THE OBJECTIONS TO I.A.224/2010 FILED BY THE 1ST RESPONDENT DATED 01.02.2010 AS PLAINTIFFIN -DO-.ANNEXURE-A27:COPY OF THE JUDGMENT DATED 15.01.2010 IN WP(C) 3529/2010 OF THE HONOURABLE HIGH COURT OF KERALA.RESPONDENT'S EXHIBITS:ANNEXURE-R1:COPY OF THE I.A 868/2008 FOR INTERIM INJUNCTION,FILED BY THE PETITIONER ON 31.03.2008, IN O.S.NO.162/2008, IN THE MUNSIFF'S COURT, KAYAMKULAM.DG -3-ANNEXURE-R2:COPY OF THE OBJECTIONS FILED BY THE RESPONDENT HEREIN ON 04.04.2008, IN -DO-ANNEXURE-R3:COPY OF THE ORDER DATED 11.04.2008 IN I.A.868/2008 IN O.S.NO.162/2008 IN -DO-.ANNEXURE-R4:COPY OF THE SALE DEED NO.2119/2009 OF THE KAYAMKULAM SUB REGISTRY.ANNEXURE-R5:COPY OF THE BUILDING PERMIT NO.C.3-(COLLECTIVELY)11595/10/K,DIS DATED 15.12.2010, WITH THE APPROVED PLAN.//TRUE COPY//P.A TO JUDGEDG V.CHITAMBARESH, J. --------------------------C.R.P No.645 Of 2010---------------------------------------Dated this the 9th day of August , 2012.O R D E R Respondents 2, 3 and 4 have not been served in the CivilRevision Petition despite earnest attempts by the revisionpetitioner. But the counsel for the first respondent/plaintiff hasno objection as regards non service of notice on them in thisCivil Revision Petition. He contends that respondents 2,3 and 4have subsequently parted with their rights over the property infavour of the revision petitioner. I am therefore disposing of theCivil Revision Petition on merits.2. The suit in O.S.No.282/1996 was one for an injunctionrestraining the defendants from constructing a buildingobstructing the alleged egress and ingress through the plaint 'A'Schedule property. The suit was dismissed by the trial court andconfirmed in appeal and later in Regular Second Appeal by thiscourt. The present suit in O.S.No.162/2008 filed by the verysame plaintiff against the successors in interest of the earlier C.R.P.No.645 of 20102defendants is one for a declaration of easement right bynecessity over the same property and for consequentialinjunction.3.The short point that arises for consideration is as towhether the suit in O.S.No.162/2008 is hit by the principles ofconstructive res judicata in view of the the provisions engraftedin Explanation IV Section 11 Code of Civil Procedure. The samereads as follows:Res judicata.- “No Court shall try any suit or issue in which the matterdirectly and substantially in issue has been directly andsubstantially in issue in a former suit between the sameparties, or between parties under whom they or any ofthem claim, litigating under the same title, in a Courtcompetent to try such subsequent suit or the suit inwhich such issue has been subsequently raised, and hasbeen heard and finally decided by such Court.”Explanation IV“Any matter which might and ought to have been madeground of defence or attack in such former suit shall bedeemed to have been a matter directly and substantiallyin issue in such suit.”4.The defendants in O.S.No.162/2008 contend that theplea of declaration of easement by necessity ought to have beenmade a ground of attack in O.S.No.286/1996 in relation to thevery same property. The defendants in other words contend thatthe prayer for declaration of easement should be deemed to havebeen negatived by implied adjudication applying the principles of C.R.P.No.645 of 20103constructive res judicata. This certainly requires a reference tothe pleadings and prayers made in O.S.No.282/1996 andO.S.No.162/2008. The parties should also be permitted to leadevidence as regards the nature of disputes in both the suits andthe scope of the liberty granted in RSA No.287/2008 arising outof O.S.No.282/1996.5.One of the cardinal tests is as to whether this prayerfor declaration of easement was available to the plaintiff to beurged in O.S No.282/1996. Further question is when did thecause of action to file O.S.No.162/2009 arise and is it after thedisposal of O.S.No.282/1996?. The plaintiff relies on thejudgment in Anathula Sudhakar Vs. P.Buchi Reddy (AIR2008 S.C 2033) whereas the defendants rely on Dadu DayaluMahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas andanother (AIR 2008 S.C 2187). Several other decisions are alsoplaced before me to buttress the contentions of either parties. 6.I feel that the bar of res judicata under Explanation IVof Section 11 requires to be considered on the basis of evidenceand pleadings. The dispute in this case lies in a very narrowcompus revolving around one item of property (C schedule) overwhich a right of way is claimed. A piecemeal adjudication of the C.R.P.No.645 of 20104issues may not be advisable as even otherwise a protracted trialwould be unnecessary to determine the real controversy. Idirect the court below to advert to this cardinal issue along withthe other issues to be answered in the suit. The defendants arevery much entitled to bank on the evidence adduced inO.S.No.282/1996 and contradict the plaintiff with regard to theadmissions made therein. I reiterate that the parties are entitledto lead evidence in order to substantiate their respectivecontentions. 8.The impugned order is set aside and the originalpetition is disposed as above. Sd/- V.CHITAMBARESH,JUDGE//TRUE COPY// P.A TO JUDGEDG