Padmanabhan v. Kumaran Kochan — 1951 DIGILAW 89 (KER)

Judgment :- 1. Plaintiffs 1 and 3 to 6 and the legal representatives of the 2nd plaintiff are the appellants. According to the plaint, the plaint schedule properties, two in number, belonged to two brothers, Poothathan Varathan and Poothathan Mallan, who were governed by the Hindu Law. Defendants 8 to 11 are the defendants of Poothathan Varathan and they are entitled to a half share in the plaint properties. The plaintiffs are the decendants of Poothathan Mallan. According to them, Mallan had only one son by name Madan and the plaintiffs are this Madan's decendants. So, the plaintiffs were entitled to the remaining half of the plaint properties. The ancestor of the plaintiffs had mortgaged an oodukoor right over 1/4th of plaint item No. 1 to Mayacontan Kelan, the father of defendants 6 and 7. This was in renewal of a prior mortgage, Ext. D, of 1057 in favour of Poothathan Kumaran, father of defendants 1 to 3 and Mayacontan Kelan mentioned above. The plaintiffs stated that the mortgagees came into possession of this oodukoor 1/4th share in the plaint item No.1 and the remaining 3/4th share was being enjoyed by the plaintiffs and defendants 8 to 11. The plaintiffs filed O.S. 871 of 1100 for the redemption of Ext. 1, the mortgage of 1075 to the ancestor of defendants 1 to 7. The mortgagees contended that they were in possession of 1/4th of the property as mortgagees and of another 1/4th as jenmis, being the heirs of Mallan Poothathan, the direct brother of Mallan Madan who was admittedly the ancestor of the plaintiffs and that, therefore, the building put up by them in the mortgage holding were not liable to be removed. The plaintiffs resisted this claim of defendants 1 to 7. But the defence contentions were accepted and they were allowed to retain the buildings put up by them in plaint item No. 1. The plaintiffs would say that a decision, or the question of the defendants title to the property, was out of the purview of that case and, as such, that decision was no bar to the present suit. Mallan Madan, according to them, had no brother by name Mallan Poothathan and defendants 1 to 7 are not members of Kuzhinjamvila family, to which the plaintiffs and defendants 8 to 11 belong. Mallan Madan, according to them, had no brother by name Mallan Poothathan and defendants 1 to 7 are not members of Kuzhinjamvila family, to which the plaintiffs and defendants 8 to 11 belong. The present suit was, therefore, necessitated because of the finding in the redemption suit, that defendants 1 to 7 were not liable to remove the buildings from item No.1 of the plaint schedule and since, on the strength of the said finding, defendants 1 to 7 were attempting to trespass into other portions of the plaint properties. The suit was, therefore, filed for a declaration of the plaintiffs' right to the plaint properties. Another declaration that defendants 1 to 7 had only a mortgage right over a 1/4th share in the plaint schedule item No.1 and that they were not entitled to any other right over the plaint properties was also sought for. An injunction was applied for to be issued against defendants 1 to 7 not to enter upon any portion of the plaint properties, except the portion held by them on mortgage. Defendants 1 to 7 contended that their ancestor, Mallan Poothathan, was the direct brother of Mallan Madan, who was the predecessor of the plaintiffs, that they were entitled to 1/4 share in the plaint schedule properties, that they were in possession of the same, that this suit was barred by res judicata by reason of the findings in O.S. 871 of 1100 and O.S. 851 of 1083, that the plaint properties were over-valued and unnecessary reliefs were prayed for with the object of bringing the suit within the jurisdiction of the District Court, to enable them to plead that the decision in O.S. 871 of 1100, filed in the Munsiff's Court, would not be a bar to the present contentions, and that the alleged title of the plaintiffs, if any, to the portion claimed by them was barred by limitation and adverse possession. The plaintiffs filed a replication in which it was stated that Mallan Madan had no brother by name Poothathan, that defendants 1 to 7 and the plaintiffs did not belong to the same family, that defendants 1 to 7 had no right over the plaint properties except that obtained by them on mortgage, that excluding the property thus mortgaged the remaining 1/4th share in item No.1 was in the possession of the plaintiffs and that defendants 1 to 7 could not have perfected the title by adverse possession. The court below found that the present suit was unnecessarily over-valued and filed in the District Court, that the same would not affect the question of res judicata, that the present suit was barred by res judicata, by virtue of the decision in O.S. 871 of 1100 of the Munsiff's Court, that the findings in O.S. 851 of 1083 would not operate as res judicata, since the findings entered there were expunged by the appellate court in its decision evidenced by Ext. E, that Mallan Madan had a brother by name Poothathan who was the ancestor of defendants 1 to 7, that defendants 1 to 7 had, therefore, an oodukoor 1/4th right over the plaint items 1 and 2, that, in view of the finding as to title, no question of adverse possession would arise and that the plaintiffs wee not entitled to any relief. The suit was therefore dismissed with costs. 2. The first question for the consideration is whether the present suit is barred by res judicata by virtue of the decision in O.S. 871 of 1100 of the Neyyattinkara Munsiff's Court. O.S. 871 of 1100 arose under the following circumstances. The plaintiff's are admittedly entitled to 1/4th share in the plaint item No. 1. The plaintiff's ancestor, Mallan Madan had, on 1.10.1057, mortgaged that 1/4th share to Poothathan Kumaran, father of defendants 1 to 3, and Mayacontan Kelan, father of defendants 6 and 7. It was stated there that the mortgagees were in possession under a prior mortgage and that credit for the same had been given in this mortgage, copy of which was Ext. D. This was renewed in 1075 in the name of Mayacontan Kelan and Kochen Mayacontan, father of defendants 4 and 5. Ext.1 is that document. O.S. 871 of 1100 was instituted by the plaintiffs to redeem this mortgage. D. This was renewed in 1075 in the name of Mayacontan Kelan and Kochen Mayacontan, father of defendants 4 and 5. Ext.1 is that document. O.S. 871 of 1100 was instituted by the plaintiffs to redeem this mortgage. Defendants 1 to 11 were defendants 1 to 11 in that suit also. In that case, the present plaintiffs had contended that the mortgagees had put up some buildings, which were scheduled there as item 2 to 4, in the mortgage holding and that they should be compelled to remove the same as they were put up without the mortgagor's consent. Defendants 1, 5 and 6 contended that they had no objection to surrender the mortgaged properties on receipt of the mortgage amount and value of improvements, that defendants 8 and 9 were entitled to a half share in the property, that the remaining 1/4th share belonged to them, that the buildings in the property were put up in their capacity as owners of that 1/4th share, that, therefore, they should be allowed to retain possession of the buildings, and that the buildings should not either be recovered by the plaintiffs or compelled to be removed. The plaintiffs; by a replication, denied the allegations of the defendants. Ext. III is copy of the judgment of the trial court in that case. It was held that the mortgagees were to surrender the mortgaged holding on receipt of the mortgage amount of 375 fanams and value of improvements coming to 25 fanams and that they were not to remove any of the buildings as they put up the same in their capacity as part owners of the property. The plaintiff's suit was, therefore, dismissed as regards their claim to compel defendants 1 to 7 to remove the buildings. The plaintiffs took up the matter in appeal to the District court in A.S. No. 636 of 1103. The learned judge was of the opinion that, since the decision of the Munsiff was made without raising issues as to whether defendants 1 to 7 were entitled to a 1/4th share in the property or whether the plaintiffs were entitled to a half share of the same including the mortgage right. The case should be sent back for findings after raising the issues relating to the different cases put forward by the plaintiffs and defendants 1 to 7 as to their title to the property. The case should be sent back for findings after raising the issues relating to the different cases put forward by the plaintiffs and defendants 1 to 7 as to their title to the property. After remand, the Munsiff's Court recorded its finding that the plaintiffs were entitled to a half share in the property and that defendatns 1 to 7 had no right whatever in the property except the mortgage right and that the buildings should not be compelled to be removed; but should be recovered by the plaintiffs on payment of their value. These findings were objected to; and the learned District Judge elaborately went into the evidence in the case and entered a definite finding that the plaintiffs' branch had only a right to 1/4th share in the property, that 1/4th share in the oodukoor belonged to the branch of defendatns 1 to 7, that it was the plaintiffs' 1/4th share that had been mortgaged to the ancestor of defendants 1 to 7, that they put up the buildings in the property by virtue of their part ownership in the mortgaged property and that they were not to be compelled to remove those buildings. Ext. IV is copy of the judgment of the District Court after remand. Against this decree of the District Court, the present plaintiffs 1, 2, 3, 5 and 6 filed S.A. 599 of 1107 in the High Court. The findings of the District Court were upheld and the appeal was dismissed by the High Court. Ext. V is copy of the judgment in that case. That judgment was pronounced on 14.4.1110 and the present suit was filed on 6.2.1120 in the District Court. 3. Defendants 1 to 6 had contended that the present suit has been overvalued, so that the suit could be filed in the District Court. This was done with the object to overcome the effect of the decision in O.S. 871 of 1100, for that decision would operate as res judicata, only in case the present suit could be tried by the Munsiff's Court. The defendants had contended that the reliefs had been overvalued and in the replication the plaintiffs had no answer to the same. The allegations in the plaint would show that the valuation given was wrong and that it was deliberately done. The defendants had contended that the reliefs had been overvalued and in the replication the plaintiffs had no answer to the same. The allegations in the plaint would show that the valuation given was wrong and that it was deliberately done. The properties, scheduled in the plaint, are the entire properties in Lekkoms 22 and 23, now bearing the same survey No. 6011, with an extent of 9 acres and 89 cents. It is the market value for this entire property that is shown in the plaint. Admittedly, one half of these properties belonged to defendants 8 to 11 and 1/4th belonged to the plaintiffs. There could, therefore, have been dispute relating to only the remaining 1/4th of these properties and, to get a declaration of the plaintiff's title to this 1/4th, court fee on 1/4th of the market value for the properties was alone necessary. The allegations in paragraphs 2 to 6 in the plaint would show that the plaintiffs claimed one half of the plaint schedule properties. So, by the plaint schedule properties they meant the whole of plaint items 1 and 2. As mentioned already, there was absolutely no dispute as to the one half right belonging to defendants 8 to 11. That was conceded by all parties. If at all, the plaintiffs wee to pay only court fees on the market value for one half of the properties if they thought that their title to the same was in danger. In the plaint the market value of the plaint properties was shown to be 14500 fanams. They were liable to pay court fees only for one half of this, that is, for 7250 fanams. If that had been the correct valuation, the present suit could be tried by the Munsiff whose pecuniary jurisdiction extended to 1400 fanams. The court below had found that the suit had been over-valued intentionally and without any bonafides. That appears to be correct. If that be so, the present suit was one which could have been tried by the Munsiff. The court below had found that the suit had been over-valued intentionally and without any bonafides. That appears to be correct. If that be so, the present suit was one which could have been tried by the Munsiff. In Chitaley's Civil Procedure Code, 1950 edition, the decisions of the several High Courts on the point had been analysed and the principle that would govern cases of this nature was mentioned there thus at page 294 of volume I: "A plaintiff cannot get rid of the bar of res judicata by including in a subsequent suit a clearly unsustainable and therefore, not a bonafide claim and bringing it in a court of higher jurisdiction. (A.I.R. 1926 Madras 829 and VI Indian Cases 287). Nor can he evade the rule by deliberately or arbitrarily overvaluing the same claim in the subsequent suit. (A.I.R. 1943 Peshwar 37,1941 Nagpur 346,1917 Patna 409 and 1928 Allahabad 127)." Thus, by the mere presentation of the plaint in the District Court, the plaintiffs could not escape the binding nature of the findings entered in O.S. 871 of 1100, for in our view, as mentioned already, this was a suit that could have been tried by the Munsiff. 4. This would lead us to the consideration whether the findings relating to the pedigree of defendant 1 to 7 and their right to 1/4th of plaint item No.1 in O.S. 871/100 were on account of matters which were directly and substantially in issue in that suit. The facts of that case had already been mentioned. The plaintiffs, in their right as mortgagors, had wanted a redemption of the property and also a direction to the mortgagees to remove the buildings, which they had put up in the plaint item No. 1. Defendants 1 to 7 contended that they were co-owners with the plaintiffs, that the property was being held and enjoyed in Oodukoor shares, that the buildings were put up by them in their capacity as co-owners of the property and that the buildings were not liable to be removed. The question, whether a direction was to be given to remove the buildings, did directly and substantially arise in that case. The plaintiffs stated that, since the mortgagees put up the buildings, they were to be removed; whereas the defendants contended that they are put up in their capacity as co-owners. The question, whether a direction was to be given to remove the buildings, did directly and substantially arise in that case. The plaintiffs stated that, since the mortgagees put up the buildings, they were to be removed; whereas the defendants contended that they are put up in their capacity as co-owners. The question, therefore, whether the defendantns 1 to 7 were part owners along with the plaintiffs did arise directly and substantially in that case. That was why the appellate court thought that specific issues on these contentions were necessary. Explanation 3 to S.11 (Indian Code) C.P.C. makes it clear when a matter could or could not be directly in issue. When a matter was alleged by one party and either denied or admitted expressly or impliedly by the other the matter arose directly and substantially in that case. That was exactly the case in O.S. 871 of 1100. The title to the property had, therefore, to be decided in that case between the parties and any finding entered there would conclusively determine the rights of the parties, so far as the plaint item No.1 was concerned. Even if the point was not properly raised by the plaintiff, both parties had, without protest, chosen to join issue upon that point. The decision on the point would, therefore operate as res judicata between the parties. The rulings in Narayana Deo v. Challa Ramana (A.I.R. 1932 P.C. 50) and Mohammadally v. Upendranadh (A.I.R. 1934 Calcutta 179) are authorities for this position. Therefore, the decisions in Exts. III to V, as to the status of defendants 1 to 7 and to their right to 1/4th of the property in that case, would operate as res judicata in the present suit. 5. It was contended that O.S. 871 of 1100 related only to the plaint item No. 1, so that it could in no way be res judicata so far as plaint item No. 2 was concerned. We do not think so. It was by virtue of the finding on the status of defendants 1 to 7 in the family of the plaintiffs and defendants 8 to 11 that they were held to be entitled to 1/4th of that property. That would be res judicata so far as all the properties of that family were concerned. We do not think so. It was by virtue of the finding on the status of defendants 1 to 7 in the family of the plaintiffs and defendants 8 to 11 that they were held to be entitled to 1/4th of that property. That would be res judicata so far as all the properties of that family were concerned. This question arose for consideration before the Judicial Committee of the Privy Council in Ramachandra v. Ramachandra (A.I.R. 1922 Privy Council 80). In a land acquisition proceedings relating to a small portion of the family properties, a question arose whether a part owner had only a limited interest or an absolute interest in the properties allotted to that party under a will of the previous owner. In the land acquisition proceedings, it was held that this party had only a limited interest in the properties obtained. In a subsequent suit relating to other properties taken by that owner, it was contended that since the land acquisition proceedings in the District Court related only to a small portion of the estate it would not operate as res judicata in a subsequent suit relating to several other properties. It was held there that it was not competent for the court, in the case of the same question arising between the same parties, to review a previous decision, no longer open to appeal given by another court having jurisdiction to try the second case, that if the decision was wrong it ought to have been appealed from in due time, that in such circumstances the interested parties could not be heard to say that the value of the subject-matter on which the former decision was pronounced was comparatively so trifling that it was not worth their while to appeal from it, that if such pleas were admissible there would bee no finality in litigation, that the importance of a judicial decision was not to be measured by the pecuniary value of the particular item in dispute, that the principle which prevented the same case being twice litigated was of general application and that this principle was not limited by the specific words of the Civil Procedure Code. A previous decision of the Privy Council in Hook v. Administrator-General of Bengal (A.I.R. 1921 P.C.11) o the same subject was followed. In view of these authoritative rulings, it is unnecessary to refer to other decided cases. A previous decision of the Privy Council in Hook v. Administrator-General of Bengal (A.I.R. 1921 P.C.11) o the same subject was followed. In view of these authoritative rulings, it is unnecessary to refer to other decided cases. Thus, though in the previous suit only the right to plaint item No.1 was agitated, that decision would apply to all the properties which belonged to the common family of the plaintiffs and defendants 1 to 11. That decision would, therefore, operate as res judicata against the plaintiffs as regards plaint item No. 2 also. On these finding we can dispose of the appeal and dismiss the same. 6. At any rate, a word on the merits of the appeal would not be out of place. The plaintiffs would say that defendants 1 to 7 were of an entirely differently family. In Ext. D, the mortgage of 1057, the mortgagors and the mortgagees were describes as belonging to the same house, Kuzhinjamvilla. That would be sufficient to hold that the parties belong to the same house. An attempt was made to show that the description of the mortgagees might have been because of their residence in the property as mortgagees, for even before 1057 this property was being enjoyed by the ancestor of defendants 1 to 7 as mortgagee. But the mortgage holding was described in Ext. D as Moolayil Veetuvilagom. An attempt was, therefore, made to show that this Moolayil Veetuvilagom was also known at Kuzhinjamvila thekkethattu. This was a deliberate attempt made to mislead the court. Ext. XI and XII are the ozhugu forms for Lekkoms 22 and 23, Lekkom 22 is Moolayil Veetuvilagom whereas Lekkom 23 is Kuzhinjamvila. These are two distinct and separate items of properties and one is given as the boundary of the other in Ext. XI and XII. There is, therefore, no force in the contention that the mortgagees, by virtue of their possession of Moolayil Vettuvilagom as mortgagees, were described as belonging to Kuzhinjamvila, because Moolayil Veetuvilagom was also known as Kuzhinjamvila. This description in Ext. D was followed in Ext.1 also between the ancestors of the plaintiffs and defendatns. In Ext. VII, a document of 1048 executed by a stranger to Poothathan Kochen, the grand father of defendants 4 and 5, he was described as belonging to Kuzhinjamvila. This description in Ext. D was followed in Ext.1 also between the ancestors of the plaintiffs and defendatns. In Ext. VII, a document of 1048 executed by a stranger to Poothathan Kochen, the grand father of defendants 4 and 5, he was described as belonging to Kuzhinjamvila. This also would show that, even from very early times, the ancestors of the defendants 1 to 7 were considered to be members of Kuzhinjamvila. The ancestor of defendants 1 to 7 was one Mallan Poothathan. The ancestor of the plaintiffs was Mallan Madan. Both were of Kuzhinjamvila and so it was more probable that Mallan Madan and Mallan Poothathan wee of the same house and that they are brothers. That was the opinion of the High Court also in tis judgment, Ext. V. We, therefore, confirm the finding of the court below that the defendants and plaintiffs are members of the same family and that the defendants 1 to 7 are entitled to 1/4th of the properties belonging to that family. The findings in the previous case would show that defendants 1 to 7 were in possession of their oodukoor right at least in Moolayil Veettuvila. Being oodukoor owners, their possession could be assumed when it was shown that at least they had possession of one of the properties held in common. We would, therefore, confirm the decree of the court below that defendants 1 to 7 were part owners with the plaintiffs. There is, therefore, absolutely no substance in this appeal, which is dismissed with costs. Dismissed.