THALANCHERI JANAKI, (DIED) v. VALIYA THODIYIL CHANDRAN

SATHISH NINAN, J.

= = = = = = = = = = = = = = = = = = R.S.A. No.1113 of 2004

= = = = = = = = = = = = = = = = = = Dated this the 11^th day of October, 2022

J U D G M E N T

The plaintiff in a suit for prohibitory injunction against trespass, is the appellant. The suit, though decreed by the trial court, was dismissed in appeal.

2. The suit as it originally filed was one for recovery of possession of plaint 'A' schedule property, with a prayer for prohibitory injunction with regard to plaint 'B' schedule property. The reliefs claimed regarding 'A' schedule property was subsequently given up. The suit as it stands is only for a prohibitory injunction with regard to the plaint 'B' schedule property.

3. The plaintiff claims possession of the property under Ext.A1 partition deed. The property of the defendant is on the western side of the plaintiff's property. The suit is filed on the allegation of attempted trespass.

6

R.S.A. No.1113 of 2004

-: 2 :-

4. The defendants contended that the plaint schedule property is described as situated in Sy. No.33/1 and that the plaintiff does not have any right or possession over the said property. There was an earlier suit as OS 16/1985 filed by the plaintiff for the very same relief which was dismissed for default. It was contended that the attempt of the plaintiff is to grab a portion of the defendant's property.

5. The suit was originally dismissed by the trial court. The first appellate court set aside the decree and remanded the matter back to the trial court for fresh disposal. Thereafter, a commissioner's report and plan were obtained. The trial court referred to the boundaries of the property as mentioned in the title deed and in the Commissioner's Plan and accordingly granted a decree. The appellate court held that possession of the property has not been proved and accordingly interfered with the decree of the trial court. It is thereupon that the Regular Second Appeal is

7

R.S.A. No.1113 of 2004

-: 3 :-

filed.

6. Heard learned Senior Counsel Sri.A.Sudhi Vasudevan on behalf of the appellant-plaintiff and Sri.Salil Narayanan K.A., learned counsel appearing on behalf of the contesting respondents on the following substantial question of law:-

"Did the Courts fail to consider the issue of possession of the plaintiff over the plaint schedule property in the suit for prohibitory injunction against trespass ?"

7. Though the description of the plaint 'B' schedule includes Sy. No.33/1, admittedly the said survey number does not find a place in the document of title of the plaintiff. Contention of the plaintiff is that the non-inclusion of the said survey number is a mistake and going by the boundaries mentioned in the title deed, they have right and possession over the plaint 'B' schedule property. Noticeably the dispute involved is regarding the western boundary of the plaint 'B' schedule. It is on the western side of the

8

R.S.A. No.1113 of 2004

-: 4 :-

plaintiff's property that the admitted property of the defendant is situated.

8. The suit being one for injunction simplicitor, the plaint 'B' schedule property must be identifiable on the spot, and the plaintiff must be in possession of the same. Unless both the above are found, there could not be a decree for prohibitory injunction. Though the trial court granted a decree for injunction, it appears that it was solely based on the commissioner's report and plan. Whether the property is identifiable at the spot was not considered. This is of significance since, the defendant cannot be called upon to obey a decree for prohibitory injunction against trespass solely based on a plan. The allegation of trespass, if any after decree, will have to be considered with reference to any physical boundary available. So unless the property lies specifically demarcated or is identifiable at the spot, there could not be a decree for prohibitory injunction.

9

R.S.A. No.1113 of 2004

-: 5 :-

9. That apart, the suit being one for injunction simplicitor, what is relevant is possession of the property. In the trial court judgment, apart from a mere sentence that the evidence of PWs.1 and 2 would go to show that the plaintiff is in possession of the plaint 'B' schedule property, there is absolutely no discussion with regard to the evidence. The first appellate court on the other hand, seems to have been carried away by the fact that in the earlier litigation in OS 16/1985 filed by the very same plaintiff, he caused manipulation in his title deed by incorporating Sy. No.33/1 and the said suit was not further prosecuted. There is not much of a discussion regarding the issue of possession. Substantial question of law is answered accordingly.

10. In the written statement, the defendant has specifically pleaded that the earlier suit OS 16/1985 filed by the very same plaintiff for the very same relief of injunction was dismissed for default. However, no issue was raised as to whether the suit is barred

10

R.S.A. No.1113 of 2004

-: 6 :-

under Order IX Rule 9 CPC. The issue raised was whether the present suit is barred by res judicata. Obviously, the issue raised was not proper. Referring to the reliefs of recovery of possession and injunction claimed by the plaintiff in the present suit and also that a subsequent cause of action has been mentioned, the first appellate court had held that the suit is not barred under Order IX Rule 9 CPC. However, there were no discussions on the same. Noticeably, the relief of recovery of possession was subsequently given up. After remand, the only relief for consideration was for prohibitory injunction. It is the very same relief that was sought for in the earlier suit in OS 16/1985. Whether a mere statement of accrual of a subsequent cause of action would save the suit from the bar under Order IX Rule 9 CPC, whether such allegation is a camouflage to get over the bar etc. needs to be considered. In Suraj Rattan Thirani and Ors. v. Azamabad Tea Co. Ltd. and Ors. [AIR 1965 SC 295], it has been held that "In

11

R.S.A. No.1113 of 2004

-: 7 :-

considering whether the cause of action in the subsequent suit is the same or not, as the cause of action in the previous suit, the test to be applied is, are the causes of action in the two suits in substance - not technically - identical ?". Thus, the "cause of action" of the subsequent suit is to be construed with reference to the substance. This aspect also needs consideration. A proper issue

regarding the applicability of Order IX Rule 9 CPC is

also to be raised and considered. It is not that this

Court has not taken note of the scope of challenge of

the findings in a remand order in the subsequent round

of the suit. The Apex Court has in, Krishna Pillai

Rajasekharan Nair (dead) by lrs. v. Padmanabha Pillai (dead) by lrs. and others (2004) 12 SCC 754 held that, such findings will not

12

R.S.A. No.1113 of 2004

-: 8 :-

11. On the discussions as above, it is evident that the matter needs a relook and fresh disposal by the trial court. To enable the same, the matter is to be remanded back to the trial court.

Resultantly, the decree and judgment of the courts below are set aside. The suit is remanded back to the trial court for disposal de novo. Parties to appear before the trial court on 16.11.2022. Sd/-

SATHISH NINAN

JUDGE

kns/- //True Copy// P.S. to Judge

13