Judgment:
1. These three appeals arise from the common judgment rendered in four appeals A.S.Nos.234/1994, 235/1994, 248/1994 and 250/1994 rendered by the learned District Judge, Thrissur, which, in turn arose from the common judgment and decree in two suits O.S.Nos.872 of 1987 and 808 of 1988 rendered by the learned Sub Judge, Thrissur.
2. The appeal S.A.No.210 of 1999 is by the plaintiff in O.S.No.872 of 1987 against the decree rendered in that suit, to the extent the relief canvassed for was declined by the courts below, which has been decreed only in part. The defendants in the above suit are the plaintiffs in the other suit O.S.No.808 of 1988. They have preferred the other two appeals S.A.Nos.251 of 1999 and 268 of 1999 to the extent aggrieved by the declining of the reliefs canvassed for in their suit, which too was decreed only in part by the courts below, and also, the decree granted in part to the plaintiffs in the connected suit. As parties in both suits are one and the same, and challenge is against the decision rendered under common judgment disposing the two suits, and later the appeals, for the sake of convenience, parties are hereinafter referred to as ranked in O.S.No.872 of 1987 as 'plaintiff' and 'defendants' unless it is otherwise found necessary for reference, to dispose these appeals.
3. The background on which suit claims were canvassed by the rival side in their respective suit, over which no dispute could be canvassed of deserve to be taken notice at the outset itself, and it can be summed up thus:The defendants are the wife and son of one Sreevalsadasan with whom the husband of the plaintiff, namely, Kunnathully Balan had money transaction, with the former to discharge the liability to the latter. The aforesaid Kunnathully Balan instituted a suit as O.S.No.261 of 1972 for recovery of money, against Sreevalsadasan. In that suit, an immovable property having an extent of 44 cents comprised in two survey numbers viz. Sy.No.626/2 (26 cents) and Sy.No.626/3 (18 cents) with a house situate therein in Eranelloor village was attached before judgment to secure the suit claim, as belonging to Sreevalsadasan. In execution, when the property was proceeded against, by which time Sreevalsadasan had already passed away, the present defendants set up a claim over the property on the basis of Ext.B1 settlement deed executed by Sreevalsadasan. Claim canvassed by them was upheld by the execution court resulting in the lifting of the attachment over the property. Ext.B2 is that order. Ext.B2 was challenged in appeal by the decree holder but of no avail as the appellate court affirmed that order. Ext.B3 is the judgment rendered by the appellate court. As against Ext.B3 judgment, the decree holder preferred a second appeal before this Court. But he did not pursue such appeal reporting that Sreevalsadasan had assigned his one half right in the property involved in favour of Chandramathy, wife of the decree holder, the present plaintiff, and as such, he was not interested in bringing that property to sale. Noting the submissions made on behalf of the decree holder/the appellant, the Ex.S.A. was dismissed. Ext.B4 is the copy of the judgment dated 04.10.1988.
4. The backdrop of the factual scenario as presented above is of crucial importance in considering the claims canvassed by the rival parties over the suit property, which, no doubt, are based on divergent allegations conflicting to one another, to sustain the reliefs canvassed in their respective suit. Both the suits had been instituted much prior to Ext.B4 judgment rendered in the Ex.S.A. by this Court, but, only after Ext.B2 order passed by the execution court lifting the attachment made over the property allowing the claim petition of the defendants.
5. O.S.No.872 of 1987 was originally filed before the Munsiff Court, Wadakkanchery as O.S.No.69 of 1984 for a decree of injunction. Later, the suit was converted as one for recovery of possession on the strength of title, and on such amendment, the plaint being returned for want of pecuniary jurisdiction, it was re-presented before the Sub Court and numbered as O.S.No.872 of 1987. Plaint in that suit was later amended to include an alternate relief for partition with mesne profits. Suit claim by the plaintiff was based on Ext.A1 sale deed executed in her favour by Sreevalsadasan conveying title over the entire extent described in the plaint schedule, 44 cents referred to above. The other suit O.S.No.808 of 1988 was initially filed before the Munsiff Court, Wadakkanchery as O.S.No.112 of 1984 by the defendants in the former suit as plaintiffs seeking a declaration that Ext.A1 sale deed is null and void, and inoperative. That suit was later transferred to Sub Court, Thrissur and renumbered as O.S.No.808 of 1988. In that suit, the present defendants, the plaintiffs therein, based their claim over the entire property on the basis of Ext.B1 settlement deed executed by late Sreevalsadasan in favour of himself, his wife and their children. In the execution proceedings of the decree passed in O.S.No.261 of 1972 of the Munsiff Court, Wadakkancherry, the attachment made over the present suit property as if it belonged to late Sreevalsadasan at the instance of the husband of the present plaintiff Chandramathi had been lifted upholding the claim of the wife and son of late Sreevalsadasan based on Ext.B1 settlement deed was canvassed for in the above suit to contend that no validity can be attached to Ext.A1 sale deed and no assignment of title, interest or possession over the suit property had passed on under that deed to the plaintiff, Chandramathi.
6. The questions that emerged for adjudication in the two suits primarily called for answers over the validity of Ext.A1 sale deed executed by Sreevalsadasan in favour of the plaintiff, Chandramathi and the exclusive title and possession claimed over the suit property under Ext.B1 settlement deed, that too, by Sreevalsadasan in favour of himself, his wife and their child. After trial, the learned Sub Judge held that under Ext.A1 sale deed, plaintiff had obtained one half right over the property, which belonged to Sreevalsadasan, and she is entitled to recover separate possession of that portion through partition by metes and bounds with mesne profits in proportion to her share from the date of suit till recovery of possession of her half share. The defendants were found entitled to value of improvements in the plaint property from the date of execution of Ext.A1 sale deed till the date of institution of the suit. O.S.No.872 of 1987 was decreed in part in favour of the plaintiff Chandramathi as indicated above. Similarly, O.S.No.808 of 1988 instituted by the wife and children of Sreevalsadasan as plaintiffs, the defendants in the former suit, was also partly decreed declaring that Ext.A1 sale deed to the extent of one half right over the plaint schedule property is invalid and not binding on them.
7. As against the decrees passed in the two suits, as indicated above, both parties preferred appeals challenging the decrees to the extent the suits were decided against them. A.S.Nos.234 of 1994 and 235 of 1994 were filed by the defendants in O.S.No.872 of 1987 as against the decree and judgment passed in the two suits O.S.No.872 of 1987 and O.S.No.808 of 1988 respectively, to the extent they were aggrieved thereto. Plaintiff in O.S.No.872 of 1987 preferred the other two appeals, A.S.No.248 of 1994 from the decree passed in O.S.No.808 of 1988 and A.S.No.250 of 1994 from the decree passed in O.S.No.872 of 1987, to the extent she was aggrieved by the common judgment rendered in the two suits by the learned Sub Judge. All these four appeals, after being heard together, were disposed by a common judgment by the learned District Judge, Thrissur, by which, except to a slight modification as to from which date the liability of the defendants to mesne profits will commence, which was ordered to operate only from the date of payment/deposit of the value of improvements by the plaintiff, the decision rendered by the learned Sub Judge was affirmed in all respects. A.S.No.234 of 1994 to the extent indicated with respect to the date from which mesne profits will be payable by the defendants was allowed in part, and all the other three appeals were dismissed. As against the decision so rendered by the learned District Judge affirming the decision of the learned Sub Judge with the modification as to the date from which mesne profits is to be paid by the defendants, both parties have preferred these appeals. Plaintiff (Chandramathi) has preferred the appeal numbered as S.A.No.210 of 1999 to the extent aggrieved by the judgment rendered in A.S.No.234 of 1994, which arose from the decree passed in the suit O.S.No.872 of 1987 by the learned Sub Judge. The defendants have preferred the other two appeals S.A.Nos.251 of 1999 and 268 of 1999, the former against the decree passed in A.S.No.234 of 1994, which arose from the decree in O.S.No.872 of 1987, and the latter from the decree passed in A.S.No.235 of 1994, which arose from the decree rendered in O.S.No.808 of 1988.
8. A preliminary objection was raised by the learned counsel for the defendants over the entertainability of S.A.No.210 of 1999 filed by the plaintiff challenging the decree in A.S.No.234 of 1994 which arose from the decree passed in the suit O.S.No.872 of 1987. As both suits O.S.No.872 of 1987 and O.S.No.808 of 1988 have been disposed of after joint trial under a common judgment, and the decision thereof objected to by way of four appeals, two of them by the plaintiff and the other two by the defendants, too disposed under a common judgment, in the absence of a separate second appeal against the decree passed in A.S.No.248 of 1994, which was filed against the decree rendered in O.S.No.808 of 1988, S.A.No.210 of 1999 filed by the plaintiff Chandramathi is not entertainable as the decision rendered dismissing of A.S.No.248 of 1994, which remains unchallenged, would constitute res judicata barring the prosecution of S.A.No.201 of 1999 by the plaintiff, is the submission of the learned counsel for the defendants/the appellants in S.A.Nos.251 and 268 of 1999. Challenge so canvassed by the learned counsel for the defendants, no doubt, is formidable; and, there cannot be any escape from the conclusion that the sole second appeal filed by the plaintiff as S.A.No.210 of 1999 from the decision in one of the two appeals preferred by her against the decision rendered in the two suits under a common judgment, where both such appeals had been dismissed by the learned District Judge, is barred by res judicata. Challenge against the correctness of the decision in one such first appeal without assailing the adverse decision rendered in the other first appeal when both such appeals arose from the common judgment rendered in the two suits, after joint trial, and as such, there being only one decision, would foreclose and interdict the plaintiff from assailing any further the judgment rendered in her two appeals by the learned District Judge (See Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279 (F.B.)).
9. What survives for consideration is only the two appeals S.A.Nos.251 of 1999 and 268 of 1999, both preferred by the defendants against the decision rendered in the two suits, O.S.No.872 of 1987 and O.S.No.808 of 1988, which arose from the decree in A.S.No.234 of 1994 and A.S.No.235 of 1994, the former of which was affirmed with a slight modification, and the latter, dismissal by the learned District Judge under the common judgment rendered in the four appeals preferred by both parties. After hearing the counsel on both sides and looking into the pleadings in both suits and the materials tendered as well, though several substantial questions have been raised in the appeals for determination, what I find is that only one of them, that alone, require critical scrutiny as the finding entered thereto would suffice for disposal of these appeals. That substantial question of law in the facts and circumstances and evidence of the case revolves round the question whether the conclusive finding made under Exts.B2 to B4 rendered in the claim petition based on Ext.B1 in the execution proceedings of O.S.No.262 of 1972, by the defendants would operate as res judicata against the plaintiff from setting up any claim of ownership over the suit property under Ext.A1 sale deed executed by Sreevalsadasan. If the answer to that question is in the negative, then alone, other questions of law formulated require to be considered in these appeals. The trial Judge has negatived the plea of res judicata, which was raised as one among the issues (second issue) in O.S.No.808 of 1988, suit instituted by the present appellants on the case canvassed by them and disputed by the other side that in view of the decision in the proceedings of the claim petition, no right could be set up under Ext.A1 sale deed. The learned Sub Judge has decided that issue thus:"The matter in issue in E.A.No.240/75 which ended in Ext.B2 order was regarding the claim of title of plaintiffs in the 2nd suit. But it was litigated between the decree holder Balan vis-a-vis the plaintiffs in O.S.No.808/88. The title question of defendants in O.S.No.808/88, i.e. the plaintiff in the main suit was not put in issue there in the execution claim petition, though indirectly it may have a bearing on the same decision. Therefore the plea of res judicata cannot sustain. Issue No.2 found in favour of plaintiff in O.S.No.808/88."If that was the reasoning followed by the learned Sub Judge to hold that the decision rendered in the proceedings of the claim petition could not operate as res judicata as against the plaintiff Chandramathi, the learned District Judge did not advert to or consider the question relating to res judicata at all in examining the claim canvassed on the basis of Ext.A1 sale deed. However, in examining the challenge over the validity of Ext.A1 sale deed taken by the plaintiff Chandramathi from Sreevalsadasan, which was impeached by the defendants, observations made in Ext.B4 judgment rendered in Ex.S.A. arising from the decision in the claim petition were taken as decisive to enter a finding that under Ext.B1 settlement deed, of which, the defendants claim title and possession over the suit property, the 1st defendant and her husband had equal rights and so much so, Ext.A1 deed to the extent of one half right of Sreevalsadasan, her husband, as found by the learned Sub Judge is valid. Both the courts below, the learned Sub Judge and also the learned District Judge, on going through the respective judgment, it is seen, have examined and considered the validity of Ext.A1 sale deed with reference to Ext.B1 settlement deed interpreting to the terms contained in the later document making advertence to the decision rendered in the claim petition, but, without taking into account the impact and decisive force as what could be the effect of such decision rendered, by which, the attachment made over the entire plaint property on the claim made by the defendants had been lifted and the decision thereof has become final and conclusive and binding on the parties.
10. As already indicated, O.S.No.261 of 1972 was a suit for money filed by Balan, husband of the plaintiff Chandramathi against Sreevalsadasan, and the property covered by Ext.A1 and Ext.B1, which is one and the same, belonging to Sreevalsadasan had been attached before judgment to secure the suit claim. Ext.B1 settlement deed, admittedly, was executed by Sreevalsadasan in favour of himself, his wife and child much before the order of attachment passed in the suit. Ext.A1 sale deed taken by the wife of Balan, namely, Chandramathi, the plaintiff in O.S.No.872 of 1987, was after the passing of the order of attachment by the court in the above suit. In the execution proceedings of the decree passed in O.S.No.261 of 1972, the defendants, the wife and child of Sreevalsadasan raised a claim over the property under Ext.B1 settlement deed contending that Sreevalsadasan had no salable interest over that property after execution of that settlement deed. Ext.B2 is the order passed by the execution court on the claim petition by which, their claim was upheld and the attachment over the property was lifted. Ext.B2 order was challenged by the decree holder Balan in appeal, but it was turned down vide Ext.B3 judgment. As against Ext.B2 order and Ext.B3 judgment, the decree holder preferred E.S.A.No.6 of 1986 before this Court. When that appeal came up, the execution of Ext.A1 sale deed by Sreevalsadasan in favour of Chandramathi, wife of the decree holder, during the pendency of the proceedings was canvassed to state that the decree holder was not interested in bringing the property of his wife to sale and, consequently, that appeal was dismissed. Ext.B4 is that judgment. Observations made in Ext.B4 judgment would show that under Ext.A1 sale deed, plaintiff Chandramathi had obtained one half right over the suit property, was the view taken by the learned District Judge under the common judgment impugned in the present appeals to hold that, to that extent, Ext.A1 deed is valid. What is the effect of the observations if at all they tend to indicate so under Ext.B4 judgment was however not examined by the learned District Judge while forming a conclusion as above to hold that Ext.A1 sale deed is valid at least to one half of the suit property on the premise that Sreevalsadasan even after execution of Ext.B1 settlement deed retained such right over that property.
11. Claim petition based on Ext.B1 settlement deed was filed by the wife and child of Sreevalsadasan in the execution proceedings of O.S.No.261 of 1972 under Order XXI Rule 58 of the Code of Civil Procedure, for short, the 'Code' challenging the attachment made over the property as belonging to Sreevalsadasan. When that claim petition was entertained and an adjudication thereof followed what will be the effect of that adjudication and the order passed thereon is the question to be considered. Previously, before the amendment of the Code in 1976, Rule 63 of Order XXI of the Code enabled a claim petitioner to institute a suit despite the dismissal of his claim to substantiate his right, title and interest over the property within the period of one year from the date of the order passed on his claim petition. That rule has been repealed and now, amended rule as under sub rule (2) of Rule 58 of Order XXI of the Code, the claim raised over the attached property has to be decided by the court, which passed the order of attachment and not by a separate suit. Sub rule (2) of Rule 58 of Order XXI of the Code reads thus:"All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit."Any decision rendered on the claim or objection raised over the attachment, it has been made clear under sub rule (4) of the above rule is to be treated as if it were a decree having the same force thereof, and, amenable to an appeal on the same conditions as applicable thereto. The above sub rule (4) of Rule 58 of Order XXI reads thus:"Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."Perusal of Ext.B2 order would show that the decree holder Balan, the husband of Chandramathi, the plaintiff, had pressed into service not only Ext.A1 sale deed taken in the name of his wife but also the original of Ext.B1 settlement deed to resist the claim raised over the attached property by the claimants - wife and child of Sreevalsadasan, the defendants/appellants herein. A challenge was also set forth that Ext.B1 was a will and not a settlement deed and it has been revoked by the execution of Ext.A1 sale deed. The execution court negativing such challenges held that no validity can be attached to the sale deed executed by Sreevalsadasan over the property covered by the settlement deed. That finding was entered into analysing the terms specified in the settlement deed that late Sreevalsadasan had no right to revoke the settlement deed or alienate the property. Ext.B1 settlement deed is dated 26.07.1970 and it was much prior to the attachment order and even earlier to the execution of the pronote on which the suit O.S.No.261 of 1972 was laid, was also taken note by the execution court to hold that such property is not liable for the debt of the judgment debtor. In the context, it is also to be taken note of, as evidenced from Ext.B2 order, that the property had been attached before judgment on 19.10.1972. In respect of that attached property the claim was raised by the 1st appellant herein, and, Ext.B2 order passed by the execution court on 06.08.1983. The suit O.S.No.261 of 1972 was decreed on 19.10.1972, and in execution, when the property which was attached before judgment was proceeded for sale the claimant had raised the claim under Order XXI Rule 58 of the Code basing such claim on the settlement deed exhibited as Ext.B1 in the present case. That claim was resisted not only by producing the original of that settlement deed but also the sale deed taken from the judgment debtor by the wife of the decree holder Chandramathi. That sale deed (Ext.A1) is dated 20.05.1978. Whether or not Chandramathi, the vendee under the sale deed was a party or not in the proceedings of the claim petition as she had taken such a deed after the attachment ordered over the property whatever be the decision rendered in such claim proceedings will undoubtedly be binding on her as she is only a pendente lite transferee, who has taken a deed over the property attached under the orders of the court. When that be so, the finding entered under Ext.B2 by the execution court that no validity can be attached to that sale deed while upholding the claim based on the settlement deed by the claimant, the wife of Sreevalsadasan, is not open to further challenge in any fresh suit, having regard to the mandate under sub rule (2) of Rule 58 of Order XXI of the Code. For more than one reason, any further challenge over the right, title and interest claimed on the basis of Ext.A1 sale deed by the plaintiff Chandramathi cannot at all be recognised nor even adjudicated upon. Since she has taken a sale deed over the attached property, while such order of attachment continued in force, she is bound by the decision passed in the proceedings of the claim petition raised over the property covered by the attachment; and, her presence or not as a party being a transferee after attachment does not make any difference at all as to the binding force of that decision. The execution court determining the claim raised over the attached property has entered a finding that no validity can be attached to Ext.A1 sale deed. The attachment made over the entire property has been lifted by order of the execution court upholding the claim raised by the claimant, the wife of Sreevalsadasan. Ext.B2 order has been affirmed in appeal by Ext.B3 judgment. Challenge against Ext.B2 order and Ext.B3 judgment by the decree holder had been negatived and the E.S.A. was dismissed. Whatever be the observations made in Ext.B4 judgment rendered in E.S.A., it would not wipe off or obliterate the finding made over the validity of Ext.A1 sale deed, which was taken pendente lite while the attachment order was in force, and also when the attachment over the entire property had been lifted recognising the claim of the claimant on the basis of Ext.B1 settlement deed. All right, title and interest over the attached property as between the parties is conclusively determined in the proceedings of the claim petition. No reservation is made under Ext.B4 judgment that the lifting of the attachment would not operate so far as any right retained by Sreevalsadasan in the property. If only there was any such reservation under Ext.B4 judgment, then alone, any claim or right could have been set up under Ext.A1 sale deed, despite the finding made by the execution court that it is not valid. The decision in the claim petition preclude the plaintiff Chandramathi from setting forth any further claim on the basis of that sale deed. When under Ext.B4 judgment rendered in E.S.A., Ext.B2 order and Ext.B3 judgment have been affirmed dismissing such appeal, the lifting of the attachment over the entire property upholding the claim of the claimant would foreclose any further challenge on the basis of Ext.A1 sale deed by the plaintiff Chandramathi over the suit property. The question whether Sreevalsadasan had retained half right even after executing Ext.B1 settlement deed, which has been gone into in detail by the two courts below to uphold the claim of the plaintiff to grant her a decree of partition and other reliefs, was not at all an issue that could be adjudicated upon since no claim on the basis of Ext.A1 sale deed in view of the binding and conclusive decision under Exts.B2 to B4 was available to the plaintiff. What has been decided in Ext.B2, which has become final under Ext.B3 and Ext.B4 that Ext.A1 sale deed has no validity is binding on the plaintiff, a pendente lite transferee, who had taken such sale deed while the attachment order of the property was in force, the claim over such property had been upheld in favour of the defendants by the courts in such proceedings. In view of the finding as above, other substantial questions of law formulated in these appeals do not require consideration at all. In the result, S.A.No.210 of 1999 is dismissed. S.A.No.251 of 1999 is allowed, ordering that the decree and judgment rendered in O.S.No.872 of 1987 as affirmed in appeal are set aside and that such suit shall stand dismissed and struck off from the file of the court. S.A.No.268 of 1999 is allowed, and modifying the decree rendered in O.S.No.808 of 1988, it is decreed as prayed for declaring that Ext.A1 sale deed is invalid, inoperative and not binding on the plaintiffs in that suit nor affect their rights in any manner over the suit property. Considering the facts and circumstances involved, both parties in these appeals are directed to suffer their costs.