Kunnath Yesoda v. Cheroota Kunhambu — 1991 DIGILAW 181 (KER)

JUDGMENT K.G. Balakrishnan, J. 1. Defendant in O.S.No. 50 of 1987 on the file of Sub Court, Payyannur is the appellant in the second appeal. Respondent plaintiff filed the suit for recovery of possession of the plaint schedule property on the strength of his title. The plaintiff alleged that the plaint schedule property originally belonged to Someswari Devaswom and it was outstanding on lease in favour of Cheriya Raman, Chandukunhi and Koran Panicker. These persons assigned the leasehold right in favour of one Kunnath Mathi. Mathi had been in possession and was raising cultivation in the property. The plaintiff alleged that on 1-11-1977 Mathi assigned the right to the plaintiff. The plaintiff later purchased jenmi right of the property in S.M. 834/1978 of the Land Tribunal, Taliparamba. The appellant defendant contested the suit and alleged that the respondent plaintiff has no title over the plaint schedule property and the property originally belonged to Kunnath Mathi, the defendant's mother, and in 1966 she entrusted the property to the defendant and the defendant purchased landlord's right in O. A. 1038/76 of the Land Tribunal, Taliparamba. The defendant also contended that the plaintiff filed O.S.191/78 for injunction and the decision in that suit operates as res judicata and, therefore, a second suit is barred. 2. The Trial Court found that the plaintiff has got title to the plaint schedule property and therefore, the recovery of possession of the property was, allowed. This finding was confirmed in A.S. 86 of 1988. The plea of res judicata raised by the defendant was found against by the court. 3. The main question that arises for consideration is whether the decision in the earlier suit in O.S. 191 of 1978 operates as res judicata as regards the finding of title of the plaintiff in respect of the plaint schedule property. Eventhough O.S. 191 of 1978 was a suit for injunction filled by the plaintiff to restrain the present appellant from trespassing into the plaint schedule property, the question of title was also considered and decided in that case. In that case, the defendant alleged that the plaintiff therein had no title to the property. In view of that contention plaintiff paid court fee under S.27(a) of the Court Fees and Suits Valuation Act and issue was framed regarding the plaintiff's title to the property. In that case, the defendant alleged that the plaintiff therein had no title to the property. In view of that contention plaintiff paid court fee under S.27(a) of the Court Fees and Suits Valuation Act and issue was framed regarding the plaintiff's title to the property. After having considered the question in detail it was found by the Trial Court that the plaintiff Kunhambu has no title to the plaint schedule property. Ext.A7 is the printed copy of the judgment in O.S.191/78. Issue No.1 in that suit is whether the plaintiff has title or possession of the plaint schedule property. A finding is entered in the following words in the last portion of Para.11 of the judgment, which reads: "It follows that plaintiff has no title or possession over the plaint schedule property and for this reason plaintiff is not entitled to the injunction prayed for in the suit". 4. The above finding was challenged by plaintiff Kunhambu by filing AS. 10 of 1981 before the District Court, Tellicherry. The District Judge by judgment dated 21-3-1983 confirmed the finding of the Trial Court and the appeal was dismissed. The finding of the District Judge is to the following effect: "The plaintiff has not succeeded in proving his possession on the date of the suit. On the other hand, the property is proved to be belonging to the 2nd defendant and her possession and enjoyment from a very long time. As such the plaintiff is not entitled to the injunction sought for as to restrain the defendant from entering into plaint schedule property or enjoying the same. It follows that the finding of the Trial Court is perfectly correct and it does not call for any interference". This decision was again challenged by the plaintiff by filing S. A 379 of 1983 before this Court "The second appeal filed by the plaintiff was dismissed in limine with a short judgment which reads as follows: "Both the courts below have concurrently found that the plaintiff has failed to prove his possession of the suit property on the date of the suit. The suit is only for an injunction. On the finding that the plaintiff has not proved his possession this suit is only to be dismissed. Any observation on the question of title can only be incidental to the finding on the question of possession. The suit is only for an injunction. On the finding that the plaintiff has not proved his possession this suit is only to be dismissed. Any observation on the question of title can only be incidental to the finding on the question of possession. That will not preclude the plaintiff from bringing a fresh suit to establish his title. I do not see any question of law to admit this second appeal. Dismissed." (emphasis supplied) 5. The courts below have now found that in view of the observation made by this Court in S.A. 379 of 1983 the possession in the earlier suit, that is O.S. 191/78, which was confirmed in AS. 10 of 1981, will not operate as res judicata. This finding is seriously assailed by the appellant in the second appeal. It may be remembered that S.A.No. 379 of 1983 was dismissed in limine and no notice was issued to the respondent therein. So, in view of the decision of the Full Bench of this Court in Thambi v. Mathew (1981 (2) KLT 848) there cannot be any merger and the decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on him and the respondent is entitled to ignore the decree of which he had no notice. The Division Bench observed: "An appeal registered under R.9 of O.41 is to be disposed of according to law and a dismissal of the appeal for the reason of delay in its presentation after the dismissal of an application for condonation of delay is in substance and effect of confirmation of the decree appealed against. A decree dismissing an appeal in limine without notice to the respondent cannot be said to be binding on him and the respondent is entitled to ignore the decree of which he had no notice. If the respondent is entitled to ignore the decree of the appellate court, it cannot be said that the decree of the subordinate court would merge in the decree of the appellate court so as to render the appellate decree binding on him". If that be so the observations made by this Court in S.A. 379 of 1983 will not bind the appellant herein and so far as he is concerned the finding of the District Judge in A.S. 10 of 1981 is final and conclusive. If that be so the observations made by this Court in S.A. 379 of 1983 will not bind the appellant herein and so far as he is concerned the finding of the District Judge in A.S. 10 of 1981 is final and conclusive. The learned counsel for the respondent cited series of decisions to strengthen the plea that when there is an appeal against the decree and judgment it is only the decree and judgment passed by the appellate court that would form the basis for res judicata and the finding of the Trial Court will not be res judicata. However, in the instant case, as decided by the Full Bench of this court in Thambi v. Mathew ( 1987 (2) KLT 848 ) there is no merger and the finding of the first appellate court will definitely be res judicata as regards the question of title and possession found by the courts below. 6. The learned counsel for the respondent contended that this Court in S.A.379 of 1983 permitted the plaintiff Kunhambu to file a fresh suit on title and, therefore, he is entitled to maintain the suit. 7. As the observation made in S.A.No. 379 of 1983 does not have the effect of merger with the decree and judgment passed in O.S. 191/78 the finding that the plaintiff Kunhambu had no title or possession over the plaint schedule property will operate as res judicata. Under O.XXIII R.1, party to a suit can withdraw or abandon part of the claim. Under O.XXIII, R.1(3) the Court can allow the plaintiff to withdraw from the suit on part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or part of the claim. Such permission shall be granted only when the court is satisfied that the suit must fail by reason of some formal defect or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. The defendant in the present suit had obtained a decision in her favour by the dismissal of the suit filed by the plaintiff. Such a decision could be varied only after hearing the concerned parties. An observation made without hearing the defendant does not bind her. The defendant in the present suit had obtained a decision in her favour by the dismissal of the suit filed by the plaintiff. Such a decision could be varied only after hearing the concerned parties. An observation made without hearing the defendant does not bind her. It may be remembered that the plaintiff had not filed any application under Order XXIII R.1 to withdraw or abandon any part of the claim. The Privy Council in Fateh Singh and others v. Jagannath Bakosh Singh and another (1925 Privy Council 55) had made certain observations in similar circumstances. In that case the Court while dismissing a suit made a remark that the plaintiffs were at liberty to file a fresh suit, but there was no formal application under O.XXIII R.1 for withdrawal. The Privy Council said that, "the remark does not amount to a permission to bring a fresh suit under O.23, R.1. In an earlier decision by the Bombay High Court in Vyankatesh Shivram Gokhale v. Krishna Bai Chavan and others (AIR 1932 Bombay 417) observed that the permission by Court in a judgment to bring fresh suit does not take the case out of bar of res judicata. That was a case in which the plaintiffs claimed a declaration against the defendant that they permanent tenants. The defendant alleged that they were annual tenants and raised the plea of res judicata by reason of decree in an earlier suit. That was a suit for possession and mesne profits of the land got by the defendant against the plaintiffs. Plaintiffs pleaded permanent tenancy but the plea was overruled and the claim was decreed against them. The tenants, plaintiffs therein, appealed and in the appellate court gave an application to the effect that they had not been able to adduce all their evidence on the question of permanent tenancy and that they wished to leave that question open and to have it decided in a subsequent suit to be filed by them, and subject to such permission they were willing that the appeal should be dismissed. Upon this the following order was passed: "The permission asked for is granted. The appeal is dismissed with costs". Commenting upon this the Court observed:" "That the permission which the defendant tenants sought could not be given to reserve the only question in suit. Upon this the following order was passed: "The permission asked for is granted. The appeal is dismissed with costs". Commenting upon this the Court observed:" "That the permission which the defendant tenants sought could not be given to reserve the only question in suit. It was a permission which they could not apply on the most elementary principles of judicial decision and which the Court could not give, and the permission purporting to be granted in appeal cannot save the present suit from being res judicata". 8. Therefore, it is clear that the observation made by this Court in S.A.No. 379 of 1983 is of no consequence and the decree and judgment passed in O.S.No. 191 of 1978, which was confirmed in A.S. 10 of 1981 holding that the plaintiff Kunhambu has no title or possession of the plaint schedule property clearly operate as res judicata and a second suit in respect of the same question is barred under S.11 of the C.P.C. The courts below were in error in holding that there was no res judicata. So, the appeal filed by the defendant is only to be allowed. 9. The learned counsel for the respondent pointed out that a cross appeal was filed by the plaintiff for mesne profits and that cross appeal was separately dealt with by the lower appellate court and was allowed and no appeal has been preferred against that decision and, therefore, it has become final. I do not think that this plea can be accepted. The lower appellate court should have disposed of the cross appeal along with the main appeal and a decree also should have been drafted incorporating the reliefs granted in the cross appeal. The decree passed by the lower appellate court does not mention anything about the cross appeal, eventhough the appeal and the cross appeal were disposed of by the Judge on the same day. As the cross appeal relates only to the payment of mesne profits, I do not think that it has got any separate existence. It is found that the plaintiff has no title and possession over the plaint schedule property and as such he is not entitled to recover possession of the property. Therefore, the question of payment of mesne profits does not arise for consideration. In the result, the second appeal is allowed with costs and suit filed by the respondent will stand dismissed.