Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 RSA NO. 1165 OF 2012 AGAINST THE JUDGMENT IN AS 223/2007 OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA OS 401/2003 OF MUNSIFF COURT, MAVELIKKARA ----- APPELLANT/APPELLANT/ADDITIONAL 2ND PLAINTIFF: JILSA BEEGOM, CHAROORETHU VADAKKATHIL, ERUMAKKUZHI, PALAMEL VILLAGE. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.NIMESH THOMAS RESPONDENTS/RESPONDENTS/DEFENDANTS 1 & 2: 1 SUBAIR, CHAROORETHU VADAKKATHIL, ERUMAKUZHI, PALAMEL VILLAGE. 2 FOUSAMMA, CHAROORETHU VADAKKATHIL, ERUMAKUZHI, PALAMEL VILLAGE. BY ADV SRI.K.SASIKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 28th day of October, 2022
J U D G M E N T
The additional second plaintiff in a suit for prohibitory injunction against trespass is the appellant. The suit was dismissed concurrently by the courts. The additional second plaintiff is the assignee pendente lite from the original plaintiff.
2. The plaint schedule property has an extent of
seven cents. The second defendant is the daughter of the plaintiff and the first defendant is the husband of the second defendant. Plaint schedule property originally belonged to one Meeran Rawther. He mortgaged to the property to one Kadeejammal. She died leaving behind her son Kochu Thampi Rawther as the sole legal heir. Under Ext.A1, he sub-mortgaged the property to the original plaintiff. The defendants are residing on the southern side of the plaint schedule property and are attempting
to trespass into the property. It is on the said -: 2 :- allegations that the suit was filed. The defendants claimed title and possession over the property under Ext.A5 Gift Deed executed in favour of the second defendant by the original plaintiff.
3. The trial court dismissed the suit. The plaintiff was unsuccessful before the first appellate court.
4. Heard learned counsel Sri.George Varghese Perumpallikuttiyil, on behalf of the appellant and Sri.K.Sasikumar on behalf of the respondents on the following substantial question of law :-
“In the light of Ext.A1 mortgage in favour of the plaintiff, were the courts right in having held that the plaintiff has failed to prove his possession over the plaint schedule property ?”
5. The plaint schedule property is described as the
north-western most 7 cents out of a larger extent of 62.5 cents, in Sy. No.142/9/1 of Palamel village. The property obtained by the plaintiff under Ext.A1 mortgage -: 3 :- also bears the same description viz. the north-western most 7 cents out of 62.5 cents. The original plaintiff had filed a suit as OS 211/91 against the present
defendants and others in respect of the very same property. The suit was one for prohibitory injunction against trespass. The suit was dismissed as withdrawn. Ext.A4 is the decree. The description of the plaint schedule property therein is the very same as the plaint schedule viz. 7 cents, that is, the north-western most 7 cents out of the 62.5 cents. The first plaintiff had executed Ext.A5 Gift Deed in favour of his daughter - the second defendant. The property conveyed thereunder is the western most 7.5 cents out of the 62.5 cents.
6. In paragraph 2 of the plaint it was specifically pleaded that, the original plaintiff is residing in a
shed situated in the plaint schedule property. The description of property covered under Ext.A5 specifically includes the shed. In the recitals to
Ext.A5 it has been stated that the original plaintiff is -: 4 :- entitled to reside in the shed situated in the property stated thereunder.
7. On the above, it admits of no doubt that the property covered under Ext.A1 mortgage and which is described in the plaint schedule, is the property covered under Ext.A5 Gift Deed executed by the original
plaintiff in favour of the second defendant, his daughter. Ext.A5 Gift Deed specifically acknowledges measurement of the property, and the possession of the property by the second defendant. In the light thereof, the present claim that the plaintiff is in possession of the property under Ext.A1 could not be sustained.
8. The plaintiff has a case that the property
covered under Ext.A1 and Ext.B5 are different properties. He relies on the boundary description of the properties. But, as noticed in the foregoing paragraphs, the said claim is without substance. The plaintiff could have very well taken out a commission and proved that the property covered under Exts.A1 and A5 are different
-: 5 :- properties. However, the same has not been attempted. The claim of the plaintiff that he is in possession of the plaint schedule property under Ext.A1 was rightly negatived by the courts. Substantial question of law is answered accordingly.
9. The present suit on the strength of Ext.A1
mortgage deed has to fail for other reasons also. The original plaintiff's wife viz. Subaida is the daughter of Meeran Rawther, the original owner of the property. He held larger extent of property which included the plaint schedule. On the death of Meeran Rawther, his wife and children including Subaida, executed Ext.B1 partition. Under Ext.B1, an extent of 62.5 cents was divided equally between Subaida and another sister. The western 31.25 cents was allotted to Subaida, the wife of plaintiff as included in item No.2 therein. Subaida died
intestate. The property devolved on the original plaintiff and his only daughter, the second defendant. The original plaintiff filed OS 256/1981 against the
-: 6 :- second defendant and the mother of Subaida, for partition of the property. Ext.B2 is the plaint in the suit. Ext.A3 is the judgment and Ext.B3 is the preliminary decree passed therein. Admittedly, no final decree proceedings were initiated thereafter. In OS for declaration of his mortgage right under Ext.A1. Relief 'A' therein reads thus:-
“A. ]-«n-I-h-kv-Xp-hn-se 1/4 A-h-Im-ihpw H-än-bm-h-Im-i-{]- Im-c-ap-Å {]-tXy-Im-h-Im-ihpw hm-Zn-¡v A-\p-h-Zn-¨v Bb- Xp \-ev-]p \n-ev-]-\p-k-cn-¨v ho-Xn-¨v hm-Zn-¡v \S-¯n ssI-h- i-s¸-Sp-¯n-X-cp-hn-¡Ww.”
10. The Court, as per Ext.A3 judgment, declined the prayer for declaration of mortgage right stating that there is no evidence in the said regard. The court refused the relief stating thus :-
“Though there is a prayer for allowing the plaintiff to get partition of the special rights, there is no specific case or any definite evidence to prove that he is entitled to get the same.” -: 7 :-
But for the above statement, there is no discussion in the judgment as to why the plaintiff is not entitled for declaration of his mortgage rights. The Court declined the relief. In terms of Explanation V to Section 11 of the Code of Civil Procedure, a relief claimed in the plaint, which is not expressly granted by the Court shall, for the purpose of the Section, be deemed to have been refused. As per Ext.B3, though not in so many words, the Court has in fact declined the relief sought by the plaintiff with regard to the mortgage right. Admittedly the said decree has become final. In the light thereof, the further claim based on Ext.A1 could not be sustained.
11. So also, as noticed supra, there was an earlier suit as OS 211/91 filed by the original plaintiff against the present defendants and others with regard to the plaint schedule property, for a prohibitory injunction against trespass. The same was dismissed as withdrawn. Ext.A5 is the decree. When a suit has been -: 8 :-
abandoned or withdrawn without the leave of the court to file a fresh suit, the subsequent suit will be barred in terms of Order XXIII Rule 1(4) of the Code of Civil Procedure. There is no case that the earlier suit was withdrawn on obtaining leave for filing a fresh suit.
12. Thus, viewed in any manner the suit was rightly dismissed by the courts. Regular Second Appeal fails and is accordingly dismissed. Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge