Kanaka Bai v. Vethala Devaswom — 1992 DIGILAW 321 (KER)

ORDER K.S. Paripoornan, J. 1. The plaintiffs (six in number) in O. S. No. 30 of 1990, Sub Court, Kochi, are the revision petitioners. In this revision, they assail the order passed by the court below in I. A. No. 24 of 1991 dated 23-1-1991. The defendants in the suit are the respondents herein. They were respondents in I. A. No. 24 of 1991 also. The plaintiffs filed I. A. No. 24 of 1991 to refer the question of tenancy to the Land Tribunal. The court below, by the order impugned, held that there is no need for referring the question of tenancy to the Land Tribunal, since it has already been decided by a competent forum in a case between the same parties. The petition was dismissed. The plaintiffs have come up in revision. 2. I heard counsel. 3. The suit is filed for a declaration regarding title and possession of plaint A schedule property and for a permanent prohibitory injunction, to restrain the defendants from trespassing into plaint A schedule property. Plaint A schedule property is 74 cents of land and a building in Sy. No. 668/1 of Ramsewaram Village, forming part of 99 cents described as B schedule in the plaint. The plaintiffs alleged that this property belonged to the first defendant Devaswom and it was leased out to the predecessor of the plaintiffs, late Manaka Prabhu, in the year 1067 ME, by a registered lease deed. The said right devolved upon the plaintiffs - petitioners. They have fixity of tenure in the property. The defendants are trying to Interfere with the possession and enjoyment of the property by the plaintiffs. So, the suit was laid. In order to decide the title of the plaintiffs, the question of tenancy has to be determined by the competent forum, for which reference has to be made to the Land Tribunal, under S.125(3) of the Kerala Land Reforms Act. 4. The application was opposed by the defendants - respondents. They contended that the dispute was already decided in a previously instituted suit between the predecessor of the plaintiffs and the defendants and so, no question of referring the same point to the Land Tribunal arises. The earlier suit, O.S. No. 283 of 1966, filed by the predecessor of the plaintiffs was pleaded as a bar for reference to the Land Tribunal. The defendants produced certain documents. The earlier suit, O.S. No. 283 of 1966, filed by the predecessor of the plaintiffs was pleaded as a bar for reference to the Land Tribunal. The defendants produced certain documents. They were so produced in O. S. No. 30 of 1989, which is tried along with the present suit. 5. Plaint A schedule property belonged to the first respondent Devaswom, Vethala Devaswom. In 1067 ME, it was leased out to Manaka Prabhu. Manaka Prabhu had two sons, viz. Anantha Prabhu and Raya Prabhu. Anandha Prabhu had two sons, Sreenivasa Prabhu and Ranganatha Prabhu. The plaintiffs are the legal heirs and successors of Sreenivasa Prabhu. In 1099 ME, there was a partition among the heirs of Manaka Prabhu. A schedule property was allotted to Anandha Prabhu. The plaintiffs further stated that on 3-11-1121 ME, there was a partition in the branch of Anandha Prabhu, wherein the plaint A schedule property was allotted to Sreenivasa Prabhu. Sreenivasa Prabhu died on 24-3-1992. The plaintiffs succeeded him. It is common ground that the property originally belonged to the first defendant - first respondent Devaswom. The defendants denied the contention that there was a demise of plaint A schedule property in favour of Manaka Prabhu. It was stated that late Sreenivasa Prabhu was only a kudikidappukaran and he purchased the kudikidappu of three cents through the Land Tribunal. He had no other right over the property. Ext. B1, certified copy of the judgment in O. S. No. 283 of 1966, Munsiff's Court, Kochi dated 3-4-1968, Ext. B2, certified copy of the plaint in the said suit. Ext. B3, issues in the said suit, Ext. B4, copy of the purchase certificate issued by the Land Tribunal dated 3-1-1977 to Sreenivasa Prabhu and Ext. B5, copy of the purchase application filed by Sreenivasa Prabhu dated 30-3-1978, were relied on by the court below, to hold that Sreenivasa Prabhu had no tenancy right. 6. Ext.B1, certified copy of the judgment in O.S. No. 283 of 1966, will show that Sreenivasa Prabhu filed a suit against the Devaswom claiming that he is a lessee of the plaint schedule property. He stated that in the partition in 1121 ME, the property was allotted to his share and that he is in possession. 6. Ext.B1, certified copy of the judgment in O.S. No. 283 of 1966, will show that Sreenivasa Prabhu filed a suit against the Devaswom claiming that he is a lessee of the plaint schedule property. He stated that in the partition in 1121 ME, the property was allotted to his share and that he is in possession. In the said suit, Sreenivasa Prabhu stated that the defendants, the Devaswom authorities, trespassed into the plaint schedule property and plucked certain coconuts and cut and removed two trees and that they had no manner of possession over the plaint schedule property. 7. The Munsiff's Court, Kochi, in a very detailed judgment dated 3-4-1968, held that Sreenivasa Prabhu was taking the income from the plaint schedule property only as one of the Athikaries of the temple and he has no individual right in respect of the plaint schedule property and that no pattom was ever received from him by the Devaswom. The court adverted to the fact that the plaintiff claimed possession as per an oral lease of the year 1098 and that there is no evidence about the oral lease pleaded. It was further held that Ext. P2 partition deed dated 5-11-1121 did not refer to Ext. P1 pattom chit dated 25-1-1067 executed by Manaka Prabhu. The court held that the plaintiff, Sreenivasa Prabhu, never enjoyed the property under Ext. P1. It was not shown how Sreenivasa Prabhu alone got right and exclusive possession of the right under Ext. P1. The court, therefore, concluded that Sreenivasa Prabhu failed to prove how he alone succeeded to the leasehold interest under Ext. P1 and the devolution of interest subsequent to Ext. P1 was lost in obscurity. The court further found that the case set up by Sreenivasa Prabhu is only a bundle of inconsistencies. The court also found that there was no evidence to show that any pattom was ever paid to the Devaswom by Sreenivasa Prabhu, In effect and in substance, "the demise pleaded by Sreenivasa Prabhu in his favour was negatived. It was held that he was not in possession of the plaint schedule property as a lessee and was in possession only as one of the Athikaries and was not entitled to an order of Injunction against the defendants, the co - Athikari of the Devaswom and others. It was held that he was not in possession of the plaint schedule property as a lessee and was in possession only as one of the Athikaries and was not entitled to an order of Injunction against the defendants, the co - Athikari of the Devaswom and others. The finding in the said suit is categoric that the predecessor in interest, Sreenivasa Prabhu, was not lessee of the property. The plea of the predecessor in interest of the plaintiffs in O. S. No. 283 of 1966 was the same as in the present suit. The finding in the said suit is conclusive, to show that the predecessor in interest of the plaintiffs, Sreenivasa Prabhu, was not a lessee of the property. He was in occupation of the property only as an Athikari of the temple. 8. Counsel for the revision petitioners very vehemently contended that in the former suit, O. S. No. 283 of 1966, Sreenivasa Prabhu put forward an oral lease by mistake. It was argued that the registered lease deed of 1067 should have been pleaded in O. S.286 of 1966, but was not done. Counsel placed heavy reliance on the registered demise on 1067 ME in favour of Manaka Prabhu and contended that as per the partition in 1098 among the heirs of Manaka Prabhu, plaint A schedule property was allotted to Anantha prabhu and in the later partition among the heirs of Anantha Prabhu on 5-11-1121, the property was allotted to Sreenivasa Prabhu and succeeded by the plaintiffs. This aspect was put forward in O. S. No. 283 of 1966 also. The court held that in Ext. P2 partition deed, an oral lease of 1098 alone is referred to. There was no evidence to prove that there was such an oral lease. The plaintiff, Sreenivasa Prabhu, gave up the plaint case of possession as per Ext. P1, pattom chit of 1067 executed by Manaka Prabhu. The court referred to this aspect and held that Sreenivasa Prabhu claimed possession only as per an oral lease of the year 1098 and there is no evidence therefor. It further held that in Ext. P2 dated 5-11-1121, the partition deed executed by the heirs of Anantha Prabhu, there is no reference about Ext. P1 and that Sreenivasa Prabhu, himself gave evidence that he was not aware about the existence of Ext. P1, when Ext. P2 was executed. It further held that in Ext. P2 dated 5-11-1121, the partition deed executed by the heirs of Anantha Prabhu, there is no reference about Ext. P1 and that Sreenivasa Prabhu, himself gave evidence that he was not aware about the existence of Ext. P1, when Ext. P2 was executed. The court below also found that Sreenivasa Prabhu never enjoyed the property under Ext. P1 dated 25-1-1067, lease deed executed by Maneka Prabhu. The court below also held that Sreenivasa Prabhu could not prove how he alone got right and exclusive possession of the property under Ext. P1, since Manaka Prabhu had two children, Anantha Prabhu and Raya Prabhu and Raya Prabhu had two children, Janardhan Prabhu and Vamana Prabhu. Sreenivasa Prabhu failed to prove that how he alone succeeded to the lease hold interest under Ext. P1 and that the devolution of interest subsequent to Ext. P1 is lost in obscurity. It was in this context, the case set up by Sreenivasa Prabhu was found to be a bundle of inconsistencies. So, the present plea that the plaintiffs are entitled to the leasehold right tracing It to demise in favour of Manaka Prabhu in the year 1067 was put forward by Sreenivasa Prabhu himself in O. S No. 283 of 1966 and found against by the court in Ext. P1. In so far as the plea of demise was expressly put forward and found against by the court in a former proceeding between the same parties, O. S. No. 283 of 1966, the court below was justified in holding that there is bar of res judicata. At that time (1968), the civil court was competent to decide the matter. The decision in O. S. No. 283 of 1966 having become final, it should be held that the plaintiffs are precluded from putting forth the plea of tenancy as one inherited from Sreenivasa Prabhu. The plaintiffs are bound by the decision in O. S. No. 283 of 1966. 9. Counsel for the petitioners, Mr. S Sreekumar, contended that in the former suit, the Devaswom as such was not a party, but only the co-Adhikari of the Devaswom was made a party therein. It was argued that in so far as in the earlier suit, O. S No. 283 of 1966, the Devaswom as such was not impleaded as a party, the decision cannot constitute res judicata. 10. It was argued that in so far as in the earlier suit, O. S No. 283 of 1966, the Devaswom as such was not impleaded as a party, the decision cannot constitute res judicata. 10. Be that as it may, I am of the view that since the predecessor in interest of the plaintiffs put forward the plea of tenancy of the suit property from the Devaswom and it was found against, Sreenivasa Prabhu and his successors in interest are estopped from putting forward the plea of tenancy under the Devaswom over again. This is so, even though the Devaswom as such was rot a party in the earlier suit. If the plaintiffs are enabled to put forward the plea at this stage, it will be an abuse of process of the court. The decision in Mcllkenny v. Chief Constable of West Midlands Police Force and another (1980 (2) All. ER 227 at pages 236 and 239) supports the above conclusion. I hold that the court below was justified in holding that the plaintiffs are bound by the decision in O. S. No. 283 of 1966. 11. Sreenivasa Prabhu, the predecessor in interest of the petitioners, himself pleaded that he was a kudikidappukaran and purchased the right through the Land Tribunal, as evidenced by Exts. B4 and 5. Ext. B5 is the application and Ext. B4 is the purchase certificate issued by the Land Tribunal. Sreenivasa Prabhu was allowed to purchase three cents. Late Sreenivasa Prabhu filed Ext. B6 application dated 30-12-1975 before the Devaswom to assign the land around his kudikidappu, Exts. B4 to 6 will show that the plaintiffs' predecessor in interest, Sreenivasa Prabhu, was only a kudikidappukaran, that he was entitled to enjoy only three cents of land and that he obtained the said right in O. A. No. 2115 of 1976. The above proceedings will conclusively show that the petitioners' plea that Sreenivasa Prabhu was a lessee is totally belied and without bona fides. The order passed by the court below in I. A. No. 24 of 1991 dated 23-1-1991 does not merit interference in revision. 12. The revision is without merit. It is dismissed with costs, including counsel fee Rs. 500/-.