In denouement, it can be stated that the judgment and decree
in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff
from asserting his possession over the property. Prayer in the suit for
prohibitory injunction is not maintainable by virtue of res judicata, bar under
Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific
Relief Act. If that be so, the suit for declaration could be regarded only as
one without seeking a consequential relief, which naturally flows from the
substantive relief. In the absence of a prayer for recovery of possession of
the property on the strength of title, the plaintiff cannot maintain a suit for
declaration simplicitor. The suit is bad for non-joinder of necessary parties.
From the facts proved, it is seen that the suit should have been instituted
within three years from the date when the right to sue first accrued.
Therefore, the suit is barred by limitation.
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR. JUSTICE A.HARIPRASAD
6TH DAY OF JANUARY 2017
RSA.No. 855 of 2016
E.N CHANDRAN
Vs
VALSAN MATATHIL
Concurrent findings by the courts below in a suit for declaration
and consequential permanent prohibitory injunction reliefs are challenged
in this second appeal. Both the courts below found in favour of the plaintiff's
case and decreed the suit. The defendant is in appeal. For the sake of
convenience and clarity, the parties are hereinafter referred to as the
plaintiff and defendant.
2. Relevant facts, in nutshell, are as follows: Plaint schedule
property, inclusive of an aided school, by name Poomangalam U.P.School,
originally belonged to M.P.Kunhikannan. On his death the property
devolved on his wife Lakshmi and children, Indira, Madhusoodanan,
Saraswathi and others. Deceased Kunhikannan's children released their
entire rights over the property and school to their mother Lakshmi on
09.06.1981. Lakshmi thereby became the absolute owner in possession of
the plaint schedule property. Lakshmi thereafter gifted the plaint schedule
property to her daughter Indira as per a registered gift deed dated
03.11.1999 (Ext.A3). Having accepted the gift, the property devolved on
Indira. Later, Indira's brother Madhusoodanan caused Lakshmi to execute
a registered sale deed on 15.11.2002 in his favour in respect of the very
same property. Ext.B1 is that document. It was also realised by Indira that
Lakshmi had executed another deed on 26.10.2002 (Ext.B11), purporting
to cancel Ext.A3 gift deed.
3. Indira, then filed O.S.No.157 of 2003 before the Munsiff's
Court, Taliparamba for a permanent prohibitory injunction relief against her
siblings,viz., Madhusoodanan and Saraswathi. In the suit, she had
obtained an interim order of injunction. In the written statement, one of the
defendants, Madhusoodanan, raised a counter claim seeking prohibitory
injunction against the plaintiff. Subsequently, the suit was dismissed for
default and the counter claim set up by Madhusoodanan was decreed
exparte. Meanwhile, Madhusoodanan executed a registered sale deed on
02.07.2005 (Ext.B2) transferring the plaint schedule property and the
school to the defendant. According to the plaint averments,
Madhusoodanan had no right, title or possession over the property and
therefore, the sale deed executed by him is of no legal consequence. The
defendant thereafter applied for transfer of ownership and managership of
the school representing himself as the Chairman, Malanad Educational and
Charitable Trust (in short, "the Trust") by submitting an application before
the authorities concerned without complying with the procedure under the
Kerala Education Rules,1959 (in short, "KER"). The plaintiff contended that
the so-called Trust is not an educational agency, permitted to establish and
maintain a school. While so, Indira transferred all her rights and interests
over the plaint schedule property to the plaintiff as per a sale deed dated
02.08.2005 (Ext.A4). The plaintiff would contend that after the assignment,
he became the absolute owner in possession of the plaint schedule
property. The plaintiff approached the authorities in the Revenue
Department as well as the Kerala Education Act, 1958 and KER, claiming
right over the property. Mutation effected to the name of defendant by the
revenue authorities was kept in abeyance when they understood that a
mutation in respect of the property had already been effected in the name
of Indira on the basis of Ext.A3. The plaintiff approached the Tahsildar,
Taliparamba complaining refusal by the Village Officer to accept basic tax
from him. Tahsildar cancelled the possession certificate, site plan, basic
tax receipt, etc. issued to the defendant and directed the parties to
approach a civil court for a proper adjudication of the disputes. On
27.05.2006, Lakshmi executed a power of attorney in favour of the plaintiff
appointing him as a correspondent as provided in KER to manage the day
today affairs of the school. Subsequently, the Director of Public Instructions
(in short, "DPI") issued an order dated 16.12.2006 according sanction to
transfer management of the school in favour of the defendant as Chairman
of the Trust. The plaintiff challenged the order of DPI before the
Government of Kerala. Government passed an order permitting the
plaintiff to continue as manager of the school. The defendant thereafter
tried to trespass into the property raising false claims. Therefore the suit
was filed.
4. Facts that the U.P.School was originally established by
deceased Kunhikannan and during his life time, he functioned as manager
are admitted in the written statement. It is further admitted that after his
death, his wife and children inherited the property and also that
Kunhikannan's children released their rights in favour of Lakshmi. Since
then, Lakshmi functioned as manager of the school till her death. It is
contended that her son Madhusoodanan acted as manager of the school
during her life time as authorised by her. Contention in the plaint that
Lakshmi had executed a gift deed in favour of her daughter Indira is false.
Indira never got possession of the property. Alleged gift deed, viz., Ext.A3
is a sham document, which never came into existence. It is also contended
that the gift deed was obtained by undue influence, force and coercion.
Indira never accepted the gift. Lakshmi transferred 20 cents of land to
Madhusoodanan out of her one acre property. Lakshmi thereafter had title
and possession over 80 cents only. Lakshmi had cancelled Ext.A3 by
Ext.B11. Thereafter, Lakshmi sold 80 cents of property to Madhusoodanan
from whom the defendant took the assignment. Lakshmi had transferred
the property and school, along with its managership. Madhusoodanan
effected mutation in his name and he was paying land revenue. Plaintiff
has no title or possession over the property. He has no authority to act as
manager of the school. Madhusoodanan, as absolute owner of the school
and appurtenant land measuring 80 cents, assigned the property to the
Trust as per Ext.B2. The suit is bad for non-joinder of necessary parties.
O.S.No.157 of 2003 filed by Indira against the predecessor-in-title of the
defendant was dismissed and the counter claim in the suit was decreed.
The decree has become final. Thus the present suit is barred by res
judicata. The suit is barred by law of limitation as well.
5. The trial court had framed issues and considered the
voluminous documentary and oral evidence produced by both the sides.
Court of first instance found that the suit is not barred by limitation and also
that it is not bad for non-joinder of necessary parties. It further found that
the documents relied on by the plaintiff conferred a valid title and
possession on him and therefore he is entitled to get the declaration and
prohibitory injunction prayed for.
6. On a re-appreciation of the evidence, the lower appellate court
concurred with the conclusions of the trial court and dismissed the appeal.
7. Heard Sri.P.B.Krishnan, learned counsel for the appellant and
Sri. Philip T. Varghese, learned counsel for the respondent.
8. The substantial questions of law, rearranged in the order of
preference, are thus:
(1) In view of the finality attached to the judgment and decree in
O.S.No.157 of 2003 and the counter claim, can the plaintiff contend that he
is in possession of the suit property on the date of filing the present suit?
(2) Is not the suit, in regard to the grant of permanent prohibitory
injunction, barred by res judicata?
(3) In the absence of a prayer for recovery of possession, is not
the suit as framed barred under the proviso to Section 34 of the Specific
Relief Act, 1963?
(4) Is the suit barred by limitation under Article 58 of the Limitation
Act, 1963 vis-a-vis the relief of declaration?
(5) In view of Section 7(5) of the Kerala Education Act, 1978, is
not the Manager of an aided school in possession of the movable and
immovable property of the school?
(6) Is the suit bad for non-joinder of necessary parties on account
of the non-impleadment of Malanad Education and Charitable Trust and
Madhusoodanan, the assignor in Ext.B2?"
9. Before dealing with the above substantial questions of law, it is
essential to take note of certain admitted facts and also those facts which
have become final by the concurrent findings of the courts below.
10. Substantive prayers in the plaint are for a declaration that the
plaintiff is the absolute owner of the plaint schedule property and also for a
permanent prohibitory injunction restraining the defendant, his men and
agents from interfering with the plaintiff's peaceful possession and
enjoyment of the plaint schedule property. As observed by the courts
below, the facts, that the plaint schedule property originally belonged to
M.P.Kunhikannan and on his death, it devolved on his wife and children,
that children of M.P.Kunhikannan had released their rights in the property in
favour of their mother Lakshmi and that Lakshmi was the manager of
Poomangalam U.P.School till her death, are admitted. The real controversy
is whether the plaintiff derived title and possession over the property by
virtue of Ext.A4 on the basis of Ext.A3 gift deed or the defendant obtained
title and possession on the basis of Ext.B2, founded on Ext.B1? An answer
to the above question will ease out the problem.
11. It is an admitted fact that the plaintiff's assignor Indira had filed
a suit against the defendant's assignor Madhusoodanan before the trial
court as O.S.No.157 of 2003. Exts.B3 and B4 are the certified copies of
the decree and judgment respectively in the above suit. It can be seen
from Exts.B3 and B4 that O.S.No.157 of 2003 filed by Indira, for a
permanent prohibitory injunction restraining the defendants and their men
from committing any waste, damage, mischief, injury or loss to the plaint
schedule property, building, movables, etc. and also from causing trouble,
mischief or inconvenience to the plaintiff in peacefully enjoying the plaint
schedule property, was dismissed for default. In that suit, the defendant
had raised a counter claim for injuncting the plaintiff and her men from
trespassing into the counter claim schedule property (which is same as the
plaint schedule property in the suit) or committing any acts of waste
thereon or obstructing the peaceful possession of the property by the
defendant (counter claimant). Fact that the counter claim was decreed is
unchallengeable.
12. Ext.B5 is an application under Order IX Rule 9 of the Code of
Civil Procedure, 1908 (in short, "the Code") filed to restore the suit. A
prayer to set aside the exparte decree in the counter claim was also made.
It is evident from Ext.B5 that the present plaintiff had also joined as an
applicant along with the original plaintiff, Indira. This application was
considered and dismissed by the trial court. Ext.B6 would show that Indira
had filed C.M.A.No.40 of 2009 before the Court of Subordinate Judge,
Payyannur challenging the orders passed on her individual applications
before the trial court to restore the suit, to set aside the decree in the
counter claim and to condone delay in filing the said applications. The
lower appellate court found that the appeal was delayed by one year, one
month and 24 days. The court found no reason to condone the delay.
Hence the petition to condone delay and consequently, the appeal were
dismissed. It is therefore indisputable that the dismissal of O.S.No.157 of
2003 and decreeing the counter claim in the suit have attained finality. The
legal effect of this fact has a direct bearing on the decision in this case.
13. Going by chronology of events, it can be seen that Lakshmi
had executed Ext.A3 in favour of her daughter Indira on 03.11.1999.
Thereafter, she executed a deed of cancellation (Ext.B11) on 26.10.2002.
Subsequently she executed Ext.B1 assignment deed in favour of her son
Madhusoodanan on 15.11.2002. Then Ext.B2 assignment deed was
executed by Madhusoodanan in favour of the defendant on 02.07.2005.
Thereafter, on 02.08.2005 Indira assigned her rights in favour of the plaintiff
as per Ext.A4. It is evident from Exts.B3 and B4 that the suit, O.S.No.157
of 2003, was dismissed and the counter claim was decreed on 08.02.2008.
Therefore it is very clear that both Indira and Madhusoodanan had
assigned the disputed property, each asserting an independent right,
during the pendency of O.S.No.157 of 2003 before the Court of Munsiff,
Taliparamba. In otherwords, the documents through which the plaintiff and
defendant claim title are transactions lis pendens.
14. Records reveal that there was a scramble for management of
the school. Eventually the orders passed by the DPI and the Government
were challenged before this Court. As per a proceedings dated 16.12.2006
the DPI approved transfer of management involving a change of ownership
of the school and appurtenant land in favour of the defendant. That was
questioned by the other party before the Government and as per order
dated 05.03.2007, the Government quashed the order passed by the DPI.
That Government order was challenged in W.P.(C) No.12104 of 2007
before this Court. Ext.B12 is the judgment in that proceedings. A learned
single Judge disposed of the writ petition with the following directions:
"In the above circumstances, Exts.P17 and
P20 orders are quashed. Until the civil courts
finally dispose of the suit, if any, pending before it,
the petitioner shall be allowed to continue as
manager of the school. The educational authority
shall pass orders in respect of the management of
the school only in accordance with the decision of
the civil court on the question of title to the
properties of the school. The writ petition is
allowed of as above."
15. This judgment was challenged in a writ appeal, viz.,
W.A.No.1653 of 2011, and ultimately the appeal was also dismissed (see
Ext.B13). Pursuant to the directions by this Court in the above
proceedings, the defendant is now continuing as manager of the school, of
course subject to the result of the suit. Ext.B13 judgment was challenged
in a special leave petition before the apex Court. But, the court did not
entertain the petition.
16. I shall now revert back to the questions of law raised.
Questions 1 & 2:
17. Sri.P.B.Krishnan contended that the courts below misconstrued
the factual and legal issues involved in the case. According to him, frame of
the suit itself is defective. The courts below failed to take note of the
adverse impact of the judgment and decree in O.S.No.157 of 2003 and the
decision in the counter claim on the reliefs claimed in the present suit.
Sri.P.B.Krishnan further contended that the plaintiff has no locus standi to
initiate any legal action asserting his possession over the property on
account of the bar of res judicata.
18. Per contra, Sri. Philip, learned counsel appearing for the
plaintiff, contended that case of the defendant that he is the owner of the
property itself is unsustainable. Ext.B2 does not confer any right or
possession on the defendant as his assignor Madhusoodanan himself had
not derived any right over the property by virtue of Ext.B1 document. As
long as the transfer of property through Ext.B3 gift deed in favour of Indira
remained in force, deceased Lakshmi could not have executed Ext.B1 in
the name of Madhusoodanan. More over, Ext.B11 has no validity in the
eye of law. In that situation, Sri.Philip contended, the defendant has no
right to raise any of the above arguments. It is the definite case of the
plaintiff that deceased Lakshmi had executed Ext.A3 gift deed in favour of
the plaintiff's assignor (Indira) and the donee had accepted the gift during
the life time of donor. Therefore, on the basis of a completed gift, Indira
became owner of the property and she was in possession. For a valid
consideration the property was purchased by the plaintiff as per Ext.A4
document. Therefore, the suit is perfectly maintainable. With regard to the
management of the school, Lakshmi herself functioned as manager during
her life time and thereafter, the right of management of the school lawfully
vested with the plaintiff.
19. Dismissal of O.S.No.157 of 2003 and decreeing the counter
claim therein have attained finality. Admittedly the prayers in the suit as
well as that in the counter claim were for permanent prohibitory injunction
reliefs against one another. Virtually, by decreeing the counter claim, the
plaintiff's assignor Indira had been injuncted from entering the property,
causing damages and also obstructing the peaceful possession of
property by the counter claimant (assignor of the defendant). Indisputable
is the proposition of law that the decree in the counter claim will operate as
res judicata insofar as the prayer for prohibitory injunction claimed in this
suit is concerned.
20. Section 11 of the Code enunciates a principle that applies as
between a past litigation and a future litigation. When a matter, whether on
a question of fact or on a question of law, has been decided between two
parties in one suit or proceedings and the decision has become final, either
because no appeal was taken to a higher court or because the appeal was
dismissed or no appeal lies, neither party will be allowed in a future suit or
proceedings to canvass the matter again. This principle of res judicata is
embodied in Section 11 of the Code in relation to suits.
21. The principle that an ex parte decree operates to render the
matter decided res judicata in a subsequent suit is no more res integra.
The Supreme Court in Saroja v. Chinnusamy (AIR 2007 SC 3067) has
held that an ex parte decree passed against a defendant could be taken as
a final decision on hearing and as such it would operate as res judicata in
the subsequent suit. It has been held that in order to attract the rule of res
judicata contained in Section 11 of the Code, the following conditions must
be satisfied:
"(i) There must be two suits - one former
suit and the other subsequent suit;
(ii) The Court which decided the former suit
must be competent to try the subsequent suit;
(iii) The matter directly and substantially in
issue must be the same either actually or
constructively in both the suits.
(iv) The matter directly and substantially in
issue in the subsequent suit must have been heard
and finally decided by the Court in the former suit;
(v) The parties to the suits or the parties
under whom they or any of them claim must be the
same in both the suits;
(vi) The parties in both the suits must have
litigated under the same title."
The contention raised by the appellant in the above case that since the
former suit was decided ex parte, it could not be said that it was finally
heard and decided by the court and therefore, condition No.(iv) was not
satisfied was repelled by the Supreme Court. The following quotation from
paragraph No.9 of the decision may be relevant for our purpose:
".............. It is well settled that an ex parte
decree is binding as a decree passed after contest on
the person against whom such an ex parte decree has
been passed. It is equally well settled that an ex parte
decree would be so treated unless the party
challenging the ex parte decree satisfies the court that
such an ex parte decree has been obtained by fraud.
Such being the position, we are unable to hold that
Condition No.(iv) was not satisfied and accordingly it
cannot be held that the principle of res judicata would
not apply in the present case. ................"
Therefore, the fact that the decree passed in O.S.No.157 of 2003 will bar
the contentions of the parties to the suit or the parties under whom they or
any of them claim is unchallengeable.
22. Another legal aspect to be mentioned is that by virtue of the
statement of law in Order IX Rule 9 of the Code, where a suit is wholly or
partly dismissed under Rule 8 of Order IX, the plaintiff shall be precluded
from bringing a fresh suit in respect of the same cause of action. But, he
may apply for an order to set the dismissal aside and if he satisfies the
court that there was sufficient cause for his non-appearance when the suit
was called on for hearing, the court shall make an order setting aside the
dismissal upon such terms as to costs.
23. In this context, a question a may arise whether the plaintiff, who
is only an assignee from the plaintiff in O.S.No.157 of 2003, is barred from
instituting a fresh suit on the same cause of action? This question was
considered by the Supreme Court elaborately in Suraj Ratan Thirani and
Others v. The Azamabad Tea Co. & Others (AIR 1965 SC 295). It was
observed that the term "cause of action" is to be construed with reference
rather to substance than to the form of action. It was held that if essential
bundle of facts on which the plaintiff based his/her title and the right to relief
were identical in two suits, then the bar under Order IX Rule 9 of the Code
will apply to the second suit, even if it was brought by an assignee from the
plaintiff in the first suit. Following quotation may be relevant for our
purpose:
"We are not however impressed by the
argument that the ban imposed by Order 9 Rule 9
creates merely a personal bar or estoppel against
the particular plaintiff suing on the same cause of
action and leaves the matter at large for those
claiming under him. Beyond the absence in Order 9
Rule 9 of the words referring 'to those claiming under
the plaintiff' there is nothing to warrant this argument.
It has neither principle, nor logic to commend it .........
The rule would obviously have no value and the bar
imposed by it would be rendered meaningless, if the
plaintiff whose suit was dismissed for default had
only to transfer the property to another and the latter
was able to agitate rights which his vendor was
precluded by law from putting forward."
24. The above said principle was followed in M/s.Parasram
Harnand Rao v. M/s.Shanti Parsad Narinder Kumar Jain and another
((1980) 3 SCC 565).
25. It is therefore well settled that if there is identity of cause of
action between the earlier suit, which was dismissed for default, and the
present suit, though it is instituted by an assignee of the plaintiff in the
earlier suit, the bar under Order IX Rule 9 of the Code will be attracted.
Even though the plaintiff in this case may contend that the second suit by
the assignee of the plaintiff in O.S.No.157 of 2003 is filed on a different
cause of action, it may be an insurmountable task for him to claim any
benefit because there is a clear identity of cause of actions in both the
suits.
26. This Court in Kesava Bhat v. Subraya Bhat (1979 KLT 766),
speaking through a Bench consisting of five learned Judges, succinctly
held that in suits for permanent injunction, the courts are concerned only
with the question of possession of the property - the nature and character
of possession is immaterial. Further, it is held that if the plaintiff does not
make out possession, there is no need at all to consider whether the
defendant is in possession and if so, in what character or capacity. A
consistent view has been taken by this Court that in a suit for injunction the
plaintiff has to prove possession over the property as on the date of
institution of the suit. This view derives support from various
pronouncements by the apex Court too. Applying the above test, it can be
seen that the plaintiff's assignor Indira failed to prove that she was in
possession of the property as on the date of filing O.S.No.157 of 2003 and
the defendant in the suit, viz., Madhusoodanan (assignor of the defendant
in this case) could establish that he was in possession of the property on
the relevant date. This finding, having attained finality, cannot be disturbed
in view of the application of Section 11 of the Code.
27. Recitals in the plaint in this case would show that the suit
happened to be filed for the reason that on 20.05.2010 the defendant tried
to trespass into the plaint schedule property by making false claims
thereon. In paragraph 11 of the plaint, the facts that O.S.No.157 of 2003
was filed by Indira, that later the suit was dismissed for default and that the
counter claim was allowed are explicitly stated. However, the plaintiff raised
a contention that the above decree could not bind him as he is in
possession of the properties. The question arising for consideration is
whether the plaintiff can claim to be in possession of the property in view of
finality of the decree in O.S.No.157 of 2003 and that in the counter claim?
The answer could be in the negative only. The plaintiff cannot be heard to
say that he is in possession of the property by virtue of Ext.A4 because of
operation of the rule in Section 11 of the Code. In the previous round of
litigation, a competent court had found that the assignor of the plaintiff was
not in possession of the property. That apart, it was also found in the
counter claim that the defendant's assignor Madhusoodanan was in
possession of the property. In the light of the fact that these findings have
become final, the plaintiff is barred from raising a contention in the present
suit that he is in possession of the property by virtue of an assignment from
the plaintiff in O.S.No.157 of 2003. Therefore, this question can only to be
decided against the plaintiff.
28. In addition to the above aspect, the law laid down by the
Supreme Court in Suraj Ratan Thirani's case (supra) makes amply clear
that the bar created by Order IX Rule 9 of the Code for a fresh suit will work
not only against the plaintiff in the suit dismissed for default, but also
against his assignee. Therefore, this legal principle also operates against
the contentions of the present plaintiff.
29. Sri. P.B.Krishnan strongly contended that the plaintiff is
debarred from raising a contention that he is in possession of the property,
for another reason too. According to him, when a defendant suffers a
decree in a previous suit for prohibitory injunction, he is perpetually
enjoined from asserting any right over the property. To buttress this
contention, Sub-section (2) of Section 37 of the Specific Relief Act, 1963 is
relied on. The provision reads as follows:
"(2) A perpetual injunction can only be
granted by the decree made at the hearing and
upon the merits of the suit; the defendant is thereby
perpetually enjoined from the assertion of a right,
or from the commission of an act, which would be
contrary to the rights of the plaintiff."
The first limb of the Section is not applicable to this case, as it deals with
temporary injunctions.
30. On a careful reading of Section 37(2) of the Specific Relief Act,
it can be seen that a perpetual injunction can only be granted by a decree
made at the hearing and upon the merits of the suit. A plaintiff seeking a
perpetual injunction against trespass, with respect to an immovable
property, will have to establish that he is in possession of the property on
the date of suit. Besides, he will have to establish that the principles in
equity are in his favour for granting an injunction decree and no ground
under Section 41 of the Specific Relief Act works against him to deny the
injunction relief.
31. Axiomatic is the proposition of law that no suit or counter claim
in a suit shall be decreed without the plaintiff or the counter claimant, as the
case may be, establishing his right to get a decree in his favour. In other
words, no suit shall be decreed merely for the reason that the defendant
did not put up a contest. On a perusal of Exts.B3 and B4, there are reasons
to hold that though the trial court dismissed the suit for default, the counter
claim was decreed after examining the merits of the case. It is pertinent to
note that the plaintiff in this case has no contention that the findings in
O.S.No.157 of 2003 were procured by perpetrating any fraud on the court
or any other similar vitiating circumstances. It is well settled that a counter
claim in a suit should be treated as a cross suit. If that be so, a decree
passed in the counter claim raised by the defendant in O.S.No.157 of 2003
will enjoin the defendant in the counter claim (plaintiff in the suit) from
asserting any right which would be contrary to the rights of the counter
claimant derived from the decree. Therefore, by virtue of Section 37(2) of
the Specific Relief Act, the plaintiff shall not be allowed to make any
assertion of a right based on possession in view of the fact that his
assignor had suffered a permanent prohibitory injunction decree.
32. Now a question may arise as to whether the assignee is bound
by a permanent prohibitory injunction decree passed against the assignor?
This question was answered by a Division Bench of this Court in Rajappan
v. Sankaran Sudhakaran (1997 (1) KLT 748). The principle reads as
follows:
"In the face of S. 146 of the Code, the
judgment debtors cannot contend that they are not
bound to obey the decree for injunction granted
against their predecessor-in-interest restraining him
from tampering with the boundary of the property or
from entering the property of the decree holder or
from committing any acts of waste therein. To permit
such a plea would be to ignore the principle of
public policy embodied in Ss. 11 and 146 of the
Code of Civil Procedure on the one hand and S. 52
of the Transfer of Property Act on the other. The
contention on behalf of the legal representatives of
the judgment debtor is that the decree holder is
bound to file another suit against them for the
identical relief. In such a suit, can the legal
representatives of the judgment debtor put forward
a claim which has already been concluded by the
decree against their predecessor-in-interest? Can
they say that the boundary had not been properly
fixed in the earlier litigation and they are entitled to
show that the boundary between the properties lay
elsewhere? According to us, they cannot. They
would be barred by resjudicata from so doing since
resjudicata bars not only the parties to the suit but
also persons who claim under the parties to the suit
and are litigating under the same title. There is no
justification for whittling down the scope of S. 146 of
the Code and to insist that a fresh suit must be filed
anytime a stranger to the decree succeeds to the
property of the judgment debtor in the prior litigation
who has suffered a decree."
A learned Single Judge, following the above decision, held in Jihas v.
Salim (2014 (2) KLT 1004) that a decree granting injunction to do or not to
do a particular act or thing in the land would run with the land
notwithstanding the change of ownership. So, this aspect also goes against
the plaintiff.
33. Learned author William Williamson Kerr in his treatise on the
Law and Practice of Injunctions (sixth edition) says that perpetual
injunctions are such as form part of the decree made at the hearing upon
merits. The perpetual injunction is in effect a decree and concludes a right.
The following quotation is relevant for our purpose:
"The jurisdiction to grant a perpetual injunction
is founded on the equity of relieving a party from the
necessity of bringing action after action at law for
every violation of a common law right, and of finally
quieting the right, after a case has received such full
decision as entitles a person to be protected against
further trials of the right."
34. From the above discussion, it is very much clear that the
plaintiff cannot legally contend that he is in possession of the property and
claim a permanent prohibitory injunction decree, either as a substantive
relief or as a consequential relief, in view of the attainment of finality of the
judgment and decree in O.S.No.157 of 2003 and the counter claim therein.
Hence these questions are decided against the plaintiff (respondent).
Question 3
35. Sri. Philip contended that there is no defect in the frame of the
suit. To dispel a cloud on the plaintiff's title, he had claimed a declaratory
relief and consequentially a prohibitory injunction relief too. According to
him, the defendant cannot claim that he has title and possession over the
property by virtue of Ext.B2 document. Sri. Philip argued that Ext.A3 gift
deed has come into effect and the gift was accepted by the donee during
the life time of the donor. The recitals in the document would show that the
donee (Indira) was put in possession of the property. In all respects, the
gift had been completed and therefore, Indira became the absolute owner
of the property. Having stated so, deceased Lakshmi (donor) could have
had no right to create any document with respect to the property covered
by Ext.A3. On a perusal of Ext.A3, it is evident that the recitals
unequivocally declare an intention on the part of the donor to gift the
property to the donee and it has been specifically recited that possession
had been handed over. It is well settled that if the recitals in a document
clearly establish a concluded gift, it can only be presumed that the gift has
been accepted and possession has been delivered to the donee. If that be
so, there is every legal reason for the plaintiff to claim that Indira had
become the owner of the property by virtue of Ext.A3 and through Ext.A4,
he got right over the property. Yet another aspect to be mentioned here is
that if Lakshmi had no subsisting right on the property after execution of
Ext.A3, the cancellation deed Ext.B11 and the assignment deed in favour
of Madhusoodanan (Ext.B1) cannot have any legal effect and they may not
bind the property. A concluded gift cannot be cancelled merely by
executing another document. This proposition is unchallengeable. If the
assignor in Ext.B1 derived no right, naturally the assignee will get nothing.
Viewing from this angle, the case of the plaintiff is meritorious. In other
words, it cannot be said that the defendant, without assailing Exts.A3 and
A4 in appropriate proceedings, cannot sit idle by contending that Ext.A3 is
a sham document. The courts below rightly found that Ext.A3 gift deed
was validly executed by Lakshmi in favour of Indira and it had taken effect.
So much so, validity of the assignment deeds Exts.B1 and B2 should have
been scrutinized by a competent court in an appropriate legal action. I
endorse the findings of the courts below on facts that Indira had derived
title to the property in dispute by virtue of Ext.A3 gift deed. However, the
question here is whether the plaintiff can succeed in this suit because of
the legal hurdles faced by him? I have already seen that the plaintiff
cannot claim to be in possession of the property because of the bar of res
judicata and that under Order IX Rule 9 of the Code. The legal principle in
Section 37(2) of the Specific Relief Act also operates against the plaintiff
from raising such a contention. Then the question is whether he can
maintain a suit without a prayer for recovery of possession on the strength
of title? In this context, two further questions may arise.
36. Firstly, if the prayer for prohibitory injunction is legally
incompetent, can a suit for declaration simplicitor be maintained?
Secondly, is a suit, without a prayer for recovery of possession,
maintainable in the light of the adverse finding in O.S.No.157 of 2003 that
the plaintiff's assignor was not in possession of the property? These two
questions can be considered together.
37. Sri.Philip, relying on the decision in S.P.Chengalvaraya Naidu
v. Jagannath ((1994) 1 SCC 1), contended that a judgment or decree
obtained by fraud should be treated as nullity and it can be questioned
even in a collateral proceedings. The Supreme Court, in the above
decision, held as follows:
"The principle of "finality of litigation" cannot
be pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of
dishonest litigants. The courts of law are meant for
imparting justice between the parties. One who
comes to the court, must come with clean hands. A
person, who's case is based on falsehood, has no
right to approach the court. He can be summarily
thrown out at any stage of the litigation. A judgment
or decree obtained by playing fraud on the court is a
nullity and non est in the eyes of law. Such a
judgment/decree - by the first court or by the highest
court - has to be treated as a nullity by every court,
whether superior or inferior. It can be challenged in
any court even in collateral proceedings."
The question to be decided here is whether the above said principle can be
applied to the facts? I have scanned through the averments in the suit.
Nowhere in the plaint any specific fraud is set up. There is no case that
either Madhusoodanan or defendant in this case had committed any fraud
on Lakshmi or Indira or the plaintiff. There is absolutely no averment in the
plaint that the decree in O.S.No.157 of 2003 was obtained by committing
fraud on the court. Order VI Rule 4 of the Code makes it clear that in all
cases in which a party relies on any contention of misrepresentation, fraud,
breach of trust, etc., particulars with dates and items, if necessary, shall be
stated in the pleadings. It is well settled that the allegation of fraud, undue
influence, etc. must be set forth in full particulars. There is absolutely no
plea in the plaint to hold that the decree in O.S.No.157 of 2003 and that in
the counter claim therein were obtained by committing fraud on the court.
Therefore, the principle in S.P.Chengalvaraya Naidu's case has no
application to this case.
38. Admittedly both the parties in O.S.No.157 of 2003 assigned
their respective rights over the disputed property in favour of the present
plaintiff and defendant pending the suit. Therefore, none of the parties has
any legal or moral right to accuse the other for committing any fraud in that
regard. Sri.Philip, relying on the decision in Maria Margarida Sequeira
Fernandes v. Erasmo Jack De Sequeira ((2012) 5 SCC 370), contended
that possession is an incidence of ownership and can be transferred by the
owner of an immovable property to another. It becomes important when
there are no title documents and other relevant records before the court.
But, once the documents and records of title come before the court, it is the
title which has to be looked at first and due weightage be given to it. It is
also contended that possession cannot be considered in vacuum. The
Supreme Court was considering the nature of possession exercised by a
care taker. The facts and circumstances in Maria Margarida Sequeira
Fernandes 's case have no application to the facts in this case. Not only
that, the position emerging from the factual and legal setting in this case is
that the plaintiff is precluded from claiming possession over the property for
the reasons mentioned above. Therefore, even if he has title over the
property, contention that he is in possession cannot be entertained.
39. Sri.P.B.Krishnan contended that prayer in the suit is to pass a
decree declaring that the plaintiff is the absolute owner of the plaint
schedule property. The consequential relief claimed is for a permanent
prohibitory injunction decree restraining the defendant and his men from
interfering with the plaintiff's peaceful possession and enjoyment of the
plaint schedule property. According to Sri P.B.Krishnan, the consequential
relief is legally not allowable for the reasons of res judicata, bar under
Order IX Rule 9 of the Code and by operation of Section 37(2) of the
Specific Relief Act. Therefore, the suit has to be considered as one without
any consequential relief. If that be so, the prohibition under the proviso to
Section 34 of the Specific Relief Act will come into play. When a
consequential relief ought to have been sought for in a suit for declaration,
it becomes not maintainable for want of a proper consequential relief. If a
consequential relief claimed in the plaint cannot be allowed on legal
grounds, the suit can only be treated as one without claiming any further
relief. This is a glaring infirmity in the plaintiff's case.
40. Another legal issue raised by the defendant is that the suit
ought to have been one for declaration and recovery of possession on the
strength of title. The question of limitation in filing a suit for declaration and
prohibitory injunction shall be considered in the succeeding paragraphs.
Insofar as a suit for declaration and recovery of possession on the strength
of title is concerned, the provision applicable under the Limitation Act, 1963
is Article 65.
41. As mentioned above, it has been found that a suit for
declaration and consequential prohibitory injunction relief is not
maintainable in view of the decision in O.S.No.157 of 2003. As there is no
prayer for recovery of possession on the strength of title, it can only be
presumed that the suit is without any consequential relief. Such a suit is hit
by the proviso to Section 34 of the Specific Relief Act. No doubt, there
should have been a prayer for recovery of possession on the strength of
title for the reason that prayer for permanent prohibitory injunction is barred
by the aforementioned legal principles attracted on account of the finality of
the decree in O.S.No.157 of 2003. Therefore, the suit, in the form in which
it is brought, is legally not sustainable. I hold that in the absence of a
prayer for recovery of possession, the suit as framed is barred.
Question 4
42. As seen in the above paragraphs, the suit framed for
declaration without a prayer for recovery of possession is not maintainable.
The trial court in its judgment has found that the plaintiff in O.S.No.157 of
2003 has preferred an application to implead the present plaintiff as the 2nd
plaintiff therein. It would go to show further that she was aware of the
nature of dispute subsisting between herself and Madhusoodanan and also
the existence of Exts.B1 and B11. It was also found by the courts below
that execution of Exts.B1, B2 and B11 was known to the plaintiff and his
predecessor-in-title at the appropriate time. O.S.No.157 of 2003 was
dismissed and the counter claim was decreed on 08.02.2008. Much before
that, the plaintiff was aware of Ext.B1 dated 15.11.2002 and Ext.B2 dated
02.07.2005. He obtained the right as per Ext.A4 dated 02.08.2005. As
observed by the courts below, the factum of execution of the objectionable
documents was known to the plaintiff three years before the institution of
the suit. Going by Article 58 of the Limitation Act, to obtain any declaration
other than those referred to in Articles 56 and 57, a suit should be filed
within three years when the right to sue first accrued. It is clear that the
present suit filed on 21.05.2010 is barred by limitation. Therefore, this
question is decided against the plaintiff.
Question 5
43. Learned counsel Sri.P.B.Krishnan, relying on Section 7(5) of
the Kerala Education Act, contended that property of an aided school will
be deemed to be in the possession and control of the manager. As
mentioned above, by virtue of the orders passed by this Court, the
defendant is functioning as manager. He, therefore, argued that the
plaintiff is not entitled to get any prohibitory injunction as prayed for
because it will conflict with the above mentioned provision in the Kerala
Education Act. This contention cannot be accepted for more than one
reason. The defendant functions as manager only on the basis of orders of
this Court and it can be regarded only as a transitory arrangement. It had
been made clear by this Court that the claim of managership raised by the
contesting parties would directly depend on the outcome of a properly
instituted suit. The defendant cannot claim that he is the manager of the
school by any independent authority. Secondly, in this suit, the defendant
cannot get his right to manage the school established because his remedy
lies in an appropriate action. What is to be decided in the suit, according to
its form and substance, is the right of the plaintiff to get the declaratory and
injunction decrees prayed for. Therefore, this question is decided against
the defendant.
Question 6
44. Another strong contention raised by the defendant is that the
suit is bad for non-joinder of necessary parties. As rightly understood by
the courts below, a necessary party is a party without whom an effective
decree cannot be passed in a suit. In this case, the defendant has raised a
specific plea in the written statement that the Trust is a necessary party to
the suit. According to the defendant, he has no personal interest over the
property. Ext.B2 is an assignment deed executed by Madhusoodanan in
favour of the Trust. In the document, the registration number and address
of the Trust were specifically shown. Recitals in the assignment deed
would show that the sale was not for any individual benefit of the
defendant, but it was intended to benefit the Trust. From the cause title
shown to the plaint, it can be seen that the defendant is impleaded in his
personal capacity. In spite of raising a specific contention of non-joinder of
necessary parties, the plaintiff failed to implead the Trust, which could only
be treated as a necessary party, as Ext.B2 is in favour of the Trust. The
decree in the suit will certainly affect the interests of the Trust. Therefore,
the reasoning stated by the trial court and the lower appellate court for
rejecting this contention of the defendant is legally unsustainable. Hence
this question is decided against the plaintiff.
45. In denouement, it can be stated that the judgment and decree
in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff
from asserting his possession over the property. Prayer in the suit for
prohibitory injunction is not maintainable by virtue of res judicata, bar under
Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific
Relief Act. If that be so, the suit for declaration could be regarded only as
one without seeking a consequential relief, which naturally flows from the
substantive relief. In the absence of a prayer for recovery of possession of
the property on the strength of title, the plaintiff cannot maintain a suit for
declaration simplicitor. The suit is bad for non-joinder of necessary parties.
From the facts proved, it is seen that the suit should have been instituted
within three years from the date when the right to sue first accrued.
Therefore, the suit is barred by limitation. It is made clear that this Court
has not made any pronouncement touching the correctness or legality of
Exts.B1 and B2 in favour of the defendant. Vexed question regarding the
right of management of the school cannot be decided in this suit in the
absence of the authorities concerned in the party array and also reckoning
nature of the pleadings and reliefs claimed.
In the result, the appeal is allowed. The concurrent findings in
O.S.No.243 of 2010 before the Court of Munsiff, Taliparamba and in
A.S.No.74 of 2015 before the Court of Subordinate Judge, Payyannur are
hereby set aside. The suit is dismissed. The parties are directed to suffer
their respective costs.
All pending interlocutory applications will stand closed.
A. HARIPRASAD, JUDGE.
Print Page
in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff
from asserting his possession over the property. Prayer in the suit for
prohibitory injunction is not maintainable by virtue of res judicata, bar under
Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific
Relief Act. If that be so, the suit for declaration could be regarded only as
one without seeking a consequential relief, which naturally flows from the
substantive relief. In the absence of a prayer for recovery of possession of
the property on the strength of title, the plaintiff cannot maintain a suit for
declaration simplicitor. The suit is bad for non-joinder of necessary parties.
From the facts proved, it is seen that the suit should have been instituted
within three years from the date when the right to sue first accrued.
Therefore, the suit is barred by limitation.
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR. JUSTICE A.HARIPRASAD
6TH DAY OF JANUARY 2017
RSA.No. 855 of 2016
E.N CHANDRAN
Vs
VALSAN MATATHIL
Concurrent findings by the courts below in a suit for declaration
and consequential permanent prohibitory injunction reliefs are challenged
in this second appeal. Both the courts below found in favour of the plaintiff's
case and decreed the suit. The defendant is in appeal. For the sake of
convenience and clarity, the parties are hereinafter referred to as the
plaintiff and defendant.
2. Relevant facts, in nutshell, are as follows: Plaint schedule
property, inclusive of an aided school, by name Poomangalam U.P.School,
originally belonged to M.P.Kunhikannan. On his death the property
devolved on his wife Lakshmi and children, Indira, Madhusoodanan,
Saraswathi and others. Deceased Kunhikannan's children released their
entire rights over the property and school to their mother Lakshmi on
09.06.1981. Lakshmi thereby became the absolute owner in possession of
the plaint schedule property. Lakshmi thereafter gifted the plaint schedule
property to her daughter Indira as per a registered gift deed dated
03.11.1999 (Ext.A3). Having accepted the gift, the property devolved on
Indira. Later, Indira's brother Madhusoodanan caused Lakshmi to execute
a registered sale deed on 15.11.2002 in his favour in respect of the very
same property. Ext.B1 is that document. It was also realised by Indira that
Lakshmi had executed another deed on 26.10.2002 (Ext.B11), purporting
to cancel Ext.A3 gift deed.
3. Indira, then filed O.S.No.157 of 2003 before the Munsiff's
Court, Taliparamba for a permanent prohibitory injunction relief against her
siblings,viz., Madhusoodanan and Saraswathi. In the suit, she had
obtained an interim order of injunction. In the written statement, one of the
defendants, Madhusoodanan, raised a counter claim seeking prohibitory
injunction against the plaintiff. Subsequently, the suit was dismissed for
default and the counter claim set up by Madhusoodanan was decreed
exparte. Meanwhile, Madhusoodanan executed a registered sale deed on
02.07.2005 (Ext.B2) transferring the plaint schedule property and the
school to the defendant. According to the plaint averments,
Madhusoodanan had no right, title or possession over the property and
therefore, the sale deed executed by him is of no legal consequence. The
defendant thereafter applied for transfer of ownership and managership of
the school representing himself as the Chairman, Malanad Educational and
Charitable Trust (in short, "the Trust") by submitting an application before
the authorities concerned without complying with the procedure under the
Kerala Education Rules,1959 (in short, "KER"). The plaintiff contended that
the so-called Trust is not an educational agency, permitted to establish and
maintain a school. While so, Indira transferred all her rights and interests
over the plaint schedule property to the plaintiff as per a sale deed dated
02.08.2005 (Ext.A4). The plaintiff would contend that after the assignment,
he became the absolute owner in possession of the plaint schedule
property. The plaintiff approached the authorities in the Revenue
Department as well as the Kerala Education Act, 1958 and KER, claiming
right over the property. Mutation effected to the name of defendant by the
revenue authorities was kept in abeyance when they understood that a
mutation in respect of the property had already been effected in the name
of Indira on the basis of Ext.A3. The plaintiff approached the Tahsildar,
Taliparamba complaining refusal by the Village Officer to accept basic tax
from him. Tahsildar cancelled the possession certificate, site plan, basic
tax receipt, etc. issued to the defendant and directed the parties to
approach a civil court for a proper adjudication of the disputes. On
27.05.2006, Lakshmi executed a power of attorney in favour of the plaintiff
appointing him as a correspondent as provided in KER to manage the day
today affairs of the school. Subsequently, the Director of Public Instructions
(in short, "DPI") issued an order dated 16.12.2006 according sanction to
transfer management of the school in favour of the defendant as Chairman
of the Trust. The plaintiff challenged the order of DPI before the
Government of Kerala. Government passed an order permitting the
plaintiff to continue as manager of the school. The defendant thereafter
tried to trespass into the property raising false claims. Therefore the suit
was filed.
4. Facts that the U.P.School was originally established by
deceased Kunhikannan and during his life time, he functioned as manager
are admitted in the written statement. It is further admitted that after his
death, his wife and children inherited the property and also that
Kunhikannan's children released their rights in favour of Lakshmi. Since
then, Lakshmi functioned as manager of the school till her death. It is
contended that her son Madhusoodanan acted as manager of the school
during her life time as authorised by her. Contention in the plaint that
Lakshmi had executed a gift deed in favour of her daughter Indira is false.
Indira never got possession of the property. Alleged gift deed, viz., Ext.A3
is a sham document, which never came into existence. It is also contended
that the gift deed was obtained by undue influence, force and coercion.
Indira never accepted the gift. Lakshmi transferred 20 cents of land to
Madhusoodanan out of her one acre property. Lakshmi thereafter had title
and possession over 80 cents only. Lakshmi had cancelled Ext.A3 by
Ext.B11. Thereafter, Lakshmi sold 80 cents of property to Madhusoodanan
from whom the defendant took the assignment. Lakshmi had transferred
the property and school, along with its managership. Madhusoodanan
effected mutation in his name and he was paying land revenue. Plaintiff
has no title or possession over the property. He has no authority to act as
manager of the school. Madhusoodanan, as absolute owner of the school
and appurtenant land measuring 80 cents, assigned the property to the
Trust as per Ext.B2. The suit is bad for non-joinder of necessary parties.
O.S.No.157 of 2003 filed by Indira against the predecessor-in-title of the
defendant was dismissed and the counter claim in the suit was decreed.
The decree has become final. Thus the present suit is barred by res
judicata. The suit is barred by law of limitation as well.
5. The trial court had framed issues and considered the
voluminous documentary and oral evidence produced by both the sides.
Court of first instance found that the suit is not barred by limitation and also
that it is not bad for non-joinder of necessary parties. It further found that
the documents relied on by the plaintiff conferred a valid title and
possession on him and therefore he is entitled to get the declaration and
prohibitory injunction prayed for.
6. On a re-appreciation of the evidence, the lower appellate court
concurred with the conclusions of the trial court and dismissed the appeal.
7. Heard Sri.P.B.Krishnan, learned counsel for the appellant and
Sri. Philip T. Varghese, learned counsel for the respondent.
8. The substantial questions of law, rearranged in the order of
preference, are thus:
(1) In view of the finality attached to the judgment and decree in
O.S.No.157 of 2003 and the counter claim, can the plaintiff contend that he
is in possession of the suit property on the date of filing the present suit?
(2) Is not the suit, in regard to the grant of permanent prohibitory
injunction, barred by res judicata?
(3) In the absence of a prayer for recovery of possession, is not
the suit as framed barred under the proviso to Section 34 of the Specific
Relief Act, 1963?
(4) Is the suit barred by limitation under Article 58 of the Limitation
Act, 1963 vis-a-vis the relief of declaration?
(5) In view of Section 7(5) of the Kerala Education Act, 1978, is
not the Manager of an aided school in possession of the movable and
immovable property of the school?
(6) Is the suit bad for non-joinder of necessary parties on account
of the non-impleadment of Malanad Education and Charitable Trust and
Madhusoodanan, the assignor in Ext.B2?"
9. Before dealing with the above substantial questions of law, it is
essential to take note of certain admitted facts and also those facts which
have become final by the concurrent findings of the courts below.
10. Substantive prayers in the plaint are for a declaration that the
plaintiff is the absolute owner of the plaint schedule property and also for a
permanent prohibitory injunction restraining the defendant, his men and
agents from interfering with the plaintiff's peaceful possession and
enjoyment of the plaint schedule property. As observed by the courts
below, the facts, that the plaint schedule property originally belonged to
M.P.Kunhikannan and on his death, it devolved on his wife and children,
that children of M.P.Kunhikannan had released their rights in the property in
favour of their mother Lakshmi and that Lakshmi was the manager of
Poomangalam U.P.School till her death, are admitted. The real controversy
is whether the plaintiff derived title and possession over the property by
virtue of Ext.A4 on the basis of Ext.A3 gift deed or the defendant obtained
title and possession on the basis of Ext.B2, founded on Ext.B1? An answer
to the above question will ease out the problem.
11. It is an admitted fact that the plaintiff's assignor Indira had filed
a suit against the defendant's assignor Madhusoodanan before the trial
court as O.S.No.157 of 2003. Exts.B3 and B4 are the certified copies of
the decree and judgment respectively in the above suit. It can be seen
from Exts.B3 and B4 that O.S.No.157 of 2003 filed by Indira, for a
permanent prohibitory injunction restraining the defendants and their men
from committing any waste, damage, mischief, injury or loss to the plaint
schedule property, building, movables, etc. and also from causing trouble,
mischief or inconvenience to the plaintiff in peacefully enjoying the plaint
schedule property, was dismissed for default. In that suit, the defendant
had raised a counter claim for injuncting the plaintiff and her men from
trespassing into the counter claim schedule property (which is same as the
plaint schedule property in the suit) or committing any acts of waste
thereon or obstructing the peaceful possession of the property by the
defendant (counter claimant). Fact that the counter claim was decreed is
unchallengeable.
12. Ext.B5 is an application under Order IX Rule 9 of the Code of
Civil Procedure, 1908 (in short, "the Code") filed to restore the suit. A
prayer to set aside the exparte decree in the counter claim was also made.
It is evident from Ext.B5 that the present plaintiff had also joined as an
applicant along with the original plaintiff, Indira. This application was
considered and dismissed by the trial court. Ext.B6 would show that Indira
had filed C.M.A.No.40 of 2009 before the Court of Subordinate Judge,
Payyannur challenging the orders passed on her individual applications
before the trial court to restore the suit, to set aside the decree in the
counter claim and to condone delay in filing the said applications. The
lower appellate court found that the appeal was delayed by one year, one
month and 24 days. The court found no reason to condone the delay.
Hence the petition to condone delay and consequently, the appeal were
dismissed. It is therefore indisputable that the dismissal of O.S.No.157 of
2003 and decreeing the counter claim in the suit have attained finality. The
legal effect of this fact has a direct bearing on the decision in this case.
13. Going by chronology of events, it can be seen that Lakshmi
had executed Ext.A3 in favour of her daughter Indira on 03.11.1999.
Thereafter, she executed a deed of cancellation (Ext.B11) on 26.10.2002.
Subsequently she executed Ext.B1 assignment deed in favour of her son
Madhusoodanan on 15.11.2002. Then Ext.B2 assignment deed was
executed by Madhusoodanan in favour of the defendant on 02.07.2005.
Thereafter, on 02.08.2005 Indira assigned her rights in favour of the plaintiff
as per Ext.A4. It is evident from Exts.B3 and B4 that the suit, O.S.No.157
of 2003, was dismissed and the counter claim was decreed on 08.02.2008.
Therefore it is very clear that both Indira and Madhusoodanan had
assigned the disputed property, each asserting an independent right,
during the pendency of O.S.No.157 of 2003 before the Court of Munsiff,
Taliparamba. In otherwords, the documents through which the plaintiff and
defendant claim title are transactions lis pendens.
14. Records reveal that there was a scramble for management of
the school. Eventually the orders passed by the DPI and the Government
were challenged before this Court. As per a proceedings dated 16.12.2006
the DPI approved transfer of management involving a change of ownership
of the school and appurtenant land in favour of the defendant. That was
questioned by the other party before the Government and as per order
dated 05.03.2007, the Government quashed the order passed by the DPI.
That Government order was challenged in W.P.(C) No.12104 of 2007
before this Court. Ext.B12 is the judgment in that proceedings. A learned
single Judge disposed of the writ petition with the following directions:
"In the above circumstances, Exts.P17 and
P20 orders are quashed. Until the civil courts
finally dispose of the suit, if any, pending before it,
the petitioner shall be allowed to continue as
manager of the school. The educational authority
shall pass orders in respect of the management of
the school only in accordance with the decision of
the civil court on the question of title to the
properties of the school. The writ petition is
allowed of as above."
15. This judgment was challenged in a writ appeal, viz.,
W.A.No.1653 of 2011, and ultimately the appeal was also dismissed (see
Ext.B13). Pursuant to the directions by this Court in the above
proceedings, the defendant is now continuing as manager of the school, of
course subject to the result of the suit. Ext.B13 judgment was challenged
in a special leave petition before the apex Court. But, the court did not
entertain the petition.
16. I shall now revert back to the questions of law raised.
Questions 1 & 2:
17. Sri.P.B.Krishnan contended that the courts below misconstrued
the factual and legal issues involved in the case. According to him, frame of
the suit itself is defective. The courts below failed to take note of the
adverse impact of the judgment and decree in O.S.No.157 of 2003 and the
decision in the counter claim on the reliefs claimed in the present suit.
Sri.P.B.Krishnan further contended that the plaintiff has no locus standi to
initiate any legal action asserting his possession over the property on
account of the bar of res judicata.
18. Per contra, Sri. Philip, learned counsel appearing for the
plaintiff, contended that case of the defendant that he is the owner of the
property itself is unsustainable. Ext.B2 does not confer any right or
possession on the defendant as his assignor Madhusoodanan himself had
not derived any right over the property by virtue of Ext.B1 document. As
long as the transfer of property through Ext.B3 gift deed in favour of Indira
remained in force, deceased Lakshmi could not have executed Ext.B1 in
the name of Madhusoodanan. More over, Ext.B11 has no validity in the
eye of law. In that situation, Sri.Philip contended, the defendant has no
right to raise any of the above arguments. It is the definite case of the
plaintiff that deceased Lakshmi had executed Ext.A3 gift deed in favour of
the plaintiff's assignor (Indira) and the donee had accepted the gift during
the life time of donor. Therefore, on the basis of a completed gift, Indira
became owner of the property and she was in possession. For a valid
consideration the property was purchased by the plaintiff as per Ext.A4
document. Therefore, the suit is perfectly maintainable. With regard to the
management of the school, Lakshmi herself functioned as manager during
her life time and thereafter, the right of management of the school lawfully
vested with the plaintiff.
19. Dismissal of O.S.No.157 of 2003 and decreeing the counter
claim therein have attained finality. Admittedly the prayers in the suit as
well as that in the counter claim were for permanent prohibitory injunction
reliefs against one another. Virtually, by decreeing the counter claim, the
plaintiff's assignor Indira had been injuncted from entering the property,
causing damages and also obstructing the peaceful possession of
property by the counter claimant (assignor of the defendant). Indisputable
is the proposition of law that the decree in the counter claim will operate as
res judicata insofar as the prayer for prohibitory injunction claimed in this
suit is concerned.
20. Section 11 of the Code enunciates a principle that applies as
between a past litigation and a future litigation. When a matter, whether on
a question of fact or on a question of law, has been decided between two
parties in one suit or proceedings and the decision has become final, either
because no appeal was taken to a higher court or because the appeal was
dismissed or no appeal lies, neither party will be allowed in a future suit or
proceedings to canvass the matter again. This principle of res judicata is
embodied in Section 11 of the Code in relation to suits.
21. The principle that an ex parte decree operates to render the
matter decided res judicata in a subsequent suit is no more res integra.
The Supreme Court in Saroja v. Chinnusamy (AIR 2007 SC 3067) has
held that an ex parte decree passed against a defendant could be taken as
a final decision on hearing and as such it would operate as res judicata in
the subsequent suit. It has been held that in order to attract the rule of res
judicata contained in Section 11 of the Code, the following conditions must
be satisfied:
"(i) There must be two suits - one former
suit and the other subsequent suit;
(ii) The Court which decided the former suit
must be competent to try the subsequent suit;
(iii) The matter directly and substantially in
issue must be the same either actually or
constructively in both the suits.
(iv) The matter directly and substantially in
issue in the subsequent suit must have been heard
and finally decided by the Court in the former suit;
(v) The parties to the suits or the parties
under whom they or any of them claim must be the
same in both the suits;
(vi) The parties in both the suits must have
litigated under the same title."
The contention raised by the appellant in the above case that since the
former suit was decided ex parte, it could not be said that it was finally
heard and decided by the court and therefore, condition No.(iv) was not
satisfied was repelled by the Supreme Court. The following quotation from
paragraph No.9 of the decision may be relevant for our purpose:
".............. It is well settled that an ex parte
decree is binding as a decree passed after contest on
the person against whom such an ex parte decree has
been passed. It is equally well settled that an ex parte
decree would be so treated unless the party
challenging the ex parte decree satisfies the court that
such an ex parte decree has been obtained by fraud.
Such being the position, we are unable to hold that
Condition No.(iv) was not satisfied and accordingly it
cannot be held that the principle of res judicata would
not apply in the present case. ................"
Therefore, the fact that the decree passed in O.S.No.157 of 2003 will bar
the contentions of the parties to the suit or the parties under whom they or
any of them claim is unchallengeable.
22. Another legal aspect to be mentioned is that by virtue of the
statement of law in Order IX Rule 9 of the Code, where a suit is wholly or
partly dismissed under Rule 8 of Order IX, the plaintiff shall be precluded
from bringing a fresh suit in respect of the same cause of action. But, he
may apply for an order to set the dismissal aside and if he satisfies the
court that there was sufficient cause for his non-appearance when the suit
was called on for hearing, the court shall make an order setting aside the
dismissal upon such terms as to costs.
23. In this context, a question a may arise whether the plaintiff, who
is only an assignee from the plaintiff in O.S.No.157 of 2003, is barred from
instituting a fresh suit on the same cause of action? This question was
considered by the Supreme Court elaborately in Suraj Ratan Thirani and
Others v. The Azamabad Tea Co. & Others (AIR 1965 SC 295). It was
observed that the term "cause of action" is to be construed with reference
rather to substance than to the form of action. It was held that if essential
bundle of facts on which the plaintiff based his/her title and the right to relief
were identical in two suits, then the bar under Order IX Rule 9 of the Code
will apply to the second suit, even if it was brought by an assignee from the
plaintiff in the first suit. Following quotation may be relevant for our
purpose:
"We are not however impressed by the
argument that the ban imposed by Order 9 Rule 9
creates merely a personal bar or estoppel against
the particular plaintiff suing on the same cause of
action and leaves the matter at large for those
claiming under him. Beyond the absence in Order 9
Rule 9 of the words referring 'to those claiming under
the plaintiff' there is nothing to warrant this argument.
It has neither principle, nor logic to commend it .........
The rule would obviously have no value and the bar
imposed by it would be rendered meaningless, if the
plaintiff whose suit was dismissed for default had
only to transfer the property to another and the latter
was able to agitate rights which his vendor was
precluded by law from putting forward."
24. The above said principle was followed in M/s.Parasram
Harnand Rao v. M/s.Shanti Parsad Narinder Kumar Jain and another
((1980) 3 SCC 565).
25. It is therefore well settled that if there is identity of cause of
action between the earlier suit, which was dismissed for default, and the
present suit, though it is instituted by an assignee of the plaintiff in the
earlier suit, the bar under Order IX Rule 9 of the Code will be attracted.
Even though the plaintiff in this case may contend that the second suit by
the assignee of the plaintiff in O.S.No.157 of 2003 is filed on a different
cause of action, it may be an insurmountable task for him to claim any
benefit because there is a clear identity of cause of actions in both the
suits.
26. This Court in Kesava Bhat v. Subraya Bhat (1979 KLT 766),
speaking through a Bench consisting of five learned Judges, succinctly
held that in suits for permanent injunction, the courts are concerned only
with the question of possession of the property - the nature and character
of possession is immaterial. Further, it is held that if the plaintiff does not
make out possession, there is no need at all to consider whether the
defendant is in possession and if so, in what character or capacity. A
consistent view has been taken by this Court that in a suit for injunction the
plaintiff has to prove possession over the property as on the date of
institution of the suit. This view derives support from various
pronouncements by the apex Court too. Applying the above test, it can be
seen that the plaintiff's assignor Indira failed to prove that she was in
possession of the property as on the date of filing O.S.No.157 of 2003 and
the defendant in the suit, viz., Madhusoodanan (assignor of the defendant
in this case) could establish that he was in possession of the property on
the relevant date. This finding, having attained finality, cannot be disturbed
in view of the application of Section 11 of the Code.
27. Recitals in the plaint in this case would show that the suit
happened to be filed for the reason that on 20.05.2010 the defendant tried
to trespass into the plaint schedule property by making false claims
thereon. In paragraph 11 of the plaint, the facts that O.S.No.157 of 2003
was filed by Indira, that later the suit was dismissed for default and that the
counter claim was allowed are explicitly stated. However, the plaintiff raised
a contention that the above decree could not bind him as he is in
possession of the properties. The question arising for consideration is
whether the plaintiff can claim to be in possession of the property in view of
finality of the decree in O.S.No.157 of 2003 and that in the counter claim?
The answer could be in the negative only. The plaintiff cannot be heard to
say that he is in possession of the property by virtue of Ext.A4 because of
operation of the rule in Section 11 of the Code. In the previous round of
litigation, a competent court had found that the assignor of the plaintiff was
not in possession of the property. That apart, it was also found in the
counter claim that the defendant's assignor Madhusoodanan was in
possession of the property. In the light of the fact that these findings have
become final, the plaintiff is barred from raising a contention in the present
suit that he is in possession of the property by virtue of an assignment from
the plaintiff in O.S.No.157 of 2003. Therefore, this question can only to be
decided against the plaintiff.
28. In addition to the above aspect, the law laid down by the
Supreme Court in Suraj Ratan Thirani's case (supra) makes amply clear
that the bar created by Order IX Rule 9 of the Code for a fresh suit will work
not only against the plaintiff in the suit dismissed for default, but also
against his assignee. Therefore, this legal principle also operates against
the contentions of the present plaintiff.
29. Sri. P.B.Krishnan strongly contended that the plaintiff is
debarred from raising a contention that he is in possession of the property,
for another reason too. According to him, when a defendant suffers a
decree in a previous suit for prohibitory injunction, he is perpetually
enjoined from asserting any right over the property. To buttress this
contention, Sub-section (2) of Section 37 of the Specific Relief Act, 1963 is
relied on. The provision reads as follows:
"(2) A perpetual injunction can only be
granted by the decree made at the hearing and
upon the merits of the suit; the defendant is thereby
perpetually enjoined from the assertion of a right,
or from the commission of an act, which would be
contrary to the rights of the plaintiff."
The first limb of the Section is not applicable to this case, as it deals with
temporary injunctions.
30. On a careful reading of Section 37(2) of the Specific Relief Act,
it can be seen that a perpetual injunction can only be granted by a decree
made at the hearing and upon the merits of the suit. A plaintiff seeking a
perpetual injunction against trespass, with respect to an immovable
property, will have to establish that he is in possession of the property on
the date of suit. Besides, he will have to establish that the principles in
equity are in his favour for granting an injunction decree and no ground
under Section 41 of the Specific Relief Act works against him to deny the
injunction relief.
31. Axiomatic is the proposition of law that no suit or counter claim
in a suit shall be decreed without the plaintiff or the counter claimant, as the
case may be, establishing his right to get a decree in his favour. In other
words, no suit shall be decreed merely for the reason that the defendant
did not put up a contest. On a perusal of Exts.B3 and B4, there are reasons
to hold that though the trial court dismissed the suit for default, the counter
claim was decreed after examining the merits of the case. It is pertinent to
note that the plaintiff in this case has no contention that the findings in
O.S.No.157 of 2003 were procured by perpetrating any fraud on the court
or any other similar vitiating circumstances. It is well settled that a counter
claim in a suit should be treated as a cross suit. If that be so, a decree
passed in the counter claim raised by the defendant in O.S.No.157 of 2003
will enjoin the defendant in the counter claim (plaintiff in the suit) from
asserting any right which would be contrary to the rights of the counter
claimant derived from the decree. Therefore, by virtue of Section 37(2) of
the Specific Relief Act, the plaintiff shall not be allowed to make any
assertion of a right based on possession in view of the fact that his
assignor had suffered a permanent prohibitory injunction decree.
32. Now a question may arise as to whether the assignee is bound
by a permanent prohibitory injunction decree passed against the assignor?
This question was answered by a Division Bench of this Court in Rajappan
v. Sankaran Sudhakaran (1997 (1) KLT 748). The principle reads as
follows:
"In the face of S. 146 of the Code, the
judgment debtors cannot contend that they are not
bound to obey the decree for injunction granted
against their predecessor-in-interest restraining him
from tampering with the boundary of the property or
from entering the property of the decree holder or
from committing any acts of waste therein. To permit
such a plea would be to ignore the principle of
public policy embodied in Ss. 11 and 146 of the
Code of Civil Procedure on the one hand and S. 52
of the Transfer of Property Act on the other. The
contention on behalf of the legal representatives of
the judgment debtor is that the decree holder is
bound to file another suit against them for the
identical relief. In such a suit, can the legal
representatives of the judgment debtor put forward
a claim which has already been concluded by the
decree against their predecessor-in-interest? Can
they say that the boundary had not been properly
fixed in the earlier litigation and they are entitled to
show that the boundary between the properties lay
elsewhere? According to us, they cannot. They
would be barred by resjudicata from so doing since
resjudicata bars not only the parties to the suit but
also persons who claim under the parties to the suit
and are litigating under the same title. There is no
justification for whittling down the scope of S. 146 of
the Code and to insist that a fresh suit must be filed
anytime a stranger to the decree succeeds to the
property of the judgment debtor in the prior litigation
who has suffered a decree."
A learned Single Judge, following the above decision, held in Jihas v.
Salim (2014 (2) KLT 1004) that a decree granting injunction to do or not to
do a particular act or thing in the land would run with the land
notwithstanding the change of ownership. So, this aspect also goes against
the plaintiff.
33. Learned author William Williamson Kerr in his treatise on the
Law and Practice of Injunctions (sixth edition) says that perpetual
injunctions are such as form part of the decree made at the hearing upon
merits. The perpetual injunction is in effect a decree and concludes a right.
The following quotation is relevant for our purpose:
"The jurisdiction to grant a perpetual injunction
is founded on the equity of relieving a party from the
necessity of bringing action after action at law for
every violation of a common law right, and of finally
quieting the right, after a case has received such full
decision as entitles a person to be protected against
further trials of the right."
34. From the above discussion, it is very much clear that the
plaintiff cannot legally contend that he is in possession of the property and
claim a permanent prohibitory injunction decree, either as a substantive
relief or as a consequential relief, in view of the attainment of finality of the
judgment and decree in O.S.No.157 of 2003 and the counter claim therein.
Hence these questions are decided against the plaintiff (respondent).
Question 3
35. Sri. Philip contended that there is no defect in the frame of the
suit. To dispel a cloud on the plaintiff's title, he had claimed a declaratory
relief and consequentially a prohibitory injunction relief too. According to
him, the defendant cannot claim that he has title and possession over the
property by virtue of Ext.B2 document. Sri. Philip argued that Ext.A3 gift
deed has come into effect and the gift was accepted by the donee during
the life time of the donor. The recitals in the document would show that the
donee (Indira) was put in possession of the property. In all respects, the
gift had been completed and therefore, Indira became the absolute owner
of the property. Having stated so, deceased Lakshmi (donor) could have
had no right to create any document with respect to the property covered
by Ext.A3. On a perusal of Ext.A3, it is evident that the recitals
unequivocally declare an intention on the part of the donor to gift the
property to the donee and it has been specifically recited that possession
had been handed over. It is well settled that if the recitals in a document
clearly establish a concluded gift, it can only be presumed that the gift has
been accepted and possession has been delivered to the donee. If that be
so, there is every legal reason for the plaintiff to claim that Indira had
become the owner of the property by virtue of Ext.A3 and through Ext.A4,
he got right over the property. Yet another aspect to be mentioned here is
that if Lakshmi had no subsisting right on the property after execution of
Ext.A3, the cancellation deed Ext.B11 and the assignment deed in favour
of Madhusoodanan (Ext.B1) cannot have any legal effect and they may not
bind the property. A concluded gift cannot be cancelled merely by
executing another document. This proposition is unchallengeable. If the
assignor in Ext.B1 derived no right, naturally the assignee will get nothing.
Viewing from this angle, the case of the plaintiff is meritorious. In other
words, it cannot be said that the defendant, without assailing Exts.A3 and
A4 in appropriate proceedings, cannot sit idle by contending that Ext.A3 is
a sham document. The courts below rightly found that Ext.A3 gift deed
was validly executed by Lakshmi in favour of Indira and it had taken effect.
So much so, validity of the assignment deeds Exts.B1 and B2 should have
been scrutinized by a competent court in an appropriate legal action. I
endorse the findings of the courts below on facts that Indira had derived
title to the property in dispute by virtue of Ext.A3 gift deed. However, the
question here is whether the plaintiff can succeed in this suit because of
the legal hurdles faced by him? I have already seen that the plaintiff
cannot claim to be in possession of the property because of the bar of res
judicata and that under Order IX Rule 9 of the Code. The legal principle in
Section 37(2) of the Specific Relief Act also operates against the plaintiff
from raising such a contention. Then the question is whether he can
maintain a suit without a prayer for recovery of possession on the strength
of title? In this context, two further questions may arise.
36. Firstly, if the prayer for prohibitory injunction is legally
incompetent, can a suit for declaration simplicitor be maintained?
Secondly, is a suit, without a prayer for recovery of possession,
maintainable in the light of the adverse finding in O.S.No.157 of 2003 that
the plaintiff's assignor was not in possession of the property? These two
questions can be considered together.
37. Sri.Philip, relying on the decision in S.P.Chengalvaraya Naidu
v. Jagannath ((1994) 1 SCC 1), contended that a judgment or decree
obtained by fraud should be treated as nullity and it can be questioned
even in a collateral proceedings. The Supreme Court, in the above
decision, held as follows:
"The principle of "finality of litigation" cannot
be pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of
dishonest litigants. The courts of law are meant for
imparting justice between the parties. One who
comes to the court, must come with clean hands. A
person, who's case is based on falsehood, has no
right to approach the court. He can be summarily
thrown out at any stage of the litigation. A judgment
or decree obtained by playing fraud on the court is a
nullity and non est in the eyes of law. Such a
judgment/decree - by the first court or by the highest
court - has to be treated as a nullity by every court,
whether superior or inferior. It can be challenged in
any court even in collateral proceedings."
The question to be decided here is whether the above said principle can be
applied to the facts? I have scanned through the averments in the suit.
Nowhere in the plaint any specific fraud is set up. There is no case that
either Madhusoodanan or defendant in this case had committed any fraud
on Lakshmi or Indira or the plaintiff. There is absolutely no averment in the
plaint that the decree in O.S.No.157 of 2003 was obtained by committing
fraud on the court. Order VI Rule 4 of the Code makes it clear that in all
cases in which a party relies on any contention of misrepresentation, fraud,
breach of trust, etc., particulars with dates and items, if necessary, shall be
stated in the pleadings. It is well settled that the allegation of fraud, undue
influence, etc. must be set forth in full particulars. There is absolutely no
plea in the plaint to hold that the decree in O.S.No.157 of 2003 and that in
the counter claim therein were obtained by committing fraud on the court.
Therefore, the principle in S.P.Chengalvaraya Naidu's case has no
application to this case.
38. Admittedly both the parties in O.S.No.157 of 2003 assigned
their respective rights over the disputed property in favour of the present
plaintiff and defendant pending the suit. Therefore, none of the parties has
any legal or moral right to accuse the other for committing any fraud in that
regard. Sri.Philip, relying on the decision in Maria Margarida Sequeira
Fernandes v. Erasmo Jack De Sequeira ((2012) 5 SCC 370), contended
that possession is an incidence of ownership and can be transferred by the
owner of an immovable property to another. It becomes important when
there are no title documents and other relevant records before the court.
But, once the documents and records of title come before the court, it is the
title which has to be looked at first and due weightage be given to it. It is
also contended that possession cannot be considered in vacuum. The
Supreme Court was considering the nature of possession exercised by a
care taker. The facts and circumstances in Maria Margarida Sequeira
Fernandes 's case have no application to the facts in this case. Not only
that, the position emerging from the factual and legal setting in this case is
that the plaintiff is precluded from claiming possession over the property for
the reasons mentioned above. Therefore, even if he has title over the
property, contention that he is in possession cannot be entertained.
39. Sri.P.B.Krishnan contended that prayer in the suit is to pass a
decree declaring that the plaintiff is the absolute owner of the plaint
schedule property. The consequential relief claimed is for a permanent
prohibitory injunction decree restraining the defendant and his men from
interfering with the plaintiff's peaceful possession and enjoyment of the
plaint schedule property. According to Sri P.B.Krishnan, the consequential
relief is legally not allowable for the reasons of res judicata, bar under
Order IX Rule 9 of the Code and by operation of Section 37(2) of the
Specific Relief Act. Therefore, the suit has to be considered as one without
any consequential relief. If that be so, the prohibition under the proviso to
Section 34 of the Specific Relief Act will come into play. When a
consequential relief ought to have been sought for in a suit for declaration,
it becomes not maintainable for want of a proper consequential relief. If a
consequential relief claimed in the plaint cannot be allowed on legal
grounds, the suit can only be treated as one without claiming any further
relief. This is a glaring infirmity in the plaintiff's case.
40. Another legal issue raised by the defendant is that the suit
ought to have been one for declaration and recovery of possession on the
strength of title. The question of limitation in filing a suit for declaration and
prohibitory injunction shall be considered in the succeeding paragraphs.
Insofar as a suit for declaration and recovery of possession on the strength
of title is concerned, the provision applicable under the Limitation Act, 1963
is Article 65.
41. As mentioned above, it has been found that a suit for
declaration and consequential prohibitory injunction relief is not
maintainable in view of the decision in O.S.No.157 of 2003. As there is no
prayer for recovery of possession on the strength of title, it can only be
presumed that the suit is without any consequential relief. Such a suit is hit
by the proviso to Section 34 of the Specific Relief Act. No doubt, there
should have been a prayer for recovery of possession on the strength of
title for the reason that prayer for permanent prohibitory injunction is barred
by the aforementioned legal principles attracted on account of the finality of
the decree in O.S.No.157 of 2003. Therefore, the suit, in the form in which
it is brought, is legally not sustainable. I hold that in the absence of a
prayer for recovery of possession, the suit as framed is barred.
Question 4
42. As seen in the above paragraphs, the suit framed for
declaration without a prayer for recovery of possession is not maintainable.
The trial court in its judgment has found that the plaintiff in O.S.No.157 of
2003 has preferred an application to implead the present plaintiff as the 2nd
plaintiff therein. It would go to show further that she was aware of the
nature of dispute subsisting between herself and Madhusoodanan and also
the existence of Exts.B1 and B11. It was also found by the courts below
that execution of Exts.B1, B2 and B11 was known to the plaintiff and his
predecessor-in-title at the appropriate time. O.S.No.157 of 2003 was
dismissed and the counter claim was decreed on 08.02.2008. Much before
that, the plaintiff was aware of Ext.B1 dated 15.11.2002 and Ext.B2 dated
02.07.2005. He obtained the right as per Ext.A4 dated 02.08.2005. As
observed by the courts below, the factum of execution of the objectionable
documents was known to the plaintiff three years before the institution of
the suit. Going by Article 58 of the Limitation Act, to obtain any declaration
other than those referred to in Articles 56 and 57, a suit should be filed
within three years when the right to sue first accrued. It is clear that the
present suit filed on 21.05.2010 is barred by limitation. Therefore, this
question is decided against the plaintiff.
Question 5
43. Learned counsel Sri.P.B.Krishnan, relying on Section 7(5) of
the Kerala Education Act, contended that property of an aided school will
be deemed to be in the possession and control of the manager. As
mentioned above, by virtue of the orders passed by this Court, the
defendant is functioning as manager. He, therefore, argued that the
plaintiff is not entitled to get any prohibitory injunction as prayed for
because it will conflict with the above mentioned provision in the Kerala
Education Act. This contention cannot be accepted for more than one
reason. The defendant functions as manager only on the basis of orders of
this Court and it can be regarded only as a transitory arrangement. It had
been made clear by this Court that the claim of managership raised by the
contesting parties would directly depend on the outcome of a properly
instituted suit. The defendant cannot claim that he is the manager of the
school by any independent authority. Secondly, in this suit, the defendant
cannot get his right to manage the school established because his remedy
lies in an appropriate action. What is to be decided in the suit, according to
its form and substance, is the right of the plaintiff to get the declaratory and
injunction decrees prayed for. Therefore, this question is decided against
the defendant.
Question 6
44. Another strong contention raised by the defendant is that the
suit is bad for non-joinder of necessary parties. As rightly understood by
the courts below, a necessary party is a party without whom an effective
decree cannot be passed in a suit. In this case, the defendant has raised a
specific plea in the written statement that the Trust is a necessary party to
the suit. According to the defendant, he has no personal interest over the
property. Ext.B2 is an assignment deed executed by Madhusoodanan in
favour of the Trust. In the document, the registration number and address
of the Trust were specifically shown. Recitals in the assignment deed
would show that the sale was not for any individual benefit of the
defendant, but it was intended to benefit the Trust. From the cause title
shown to the plaint, it can be seen that the defendant is impleaded in his
personal capacity. In spite of raising a specific contention of non-joinder of
necessary parties, the plaintiff failed to implead the Trust, which could only
be treated as a necessary party, as Ext.B2 is in favour of the Trust. The
decree in the suit will certainly affect the interests of the Trust. Therefore,
the reasoning stated by the trial court and the lower appellate court for
rejecting this contention of the defendant is legally unsustainable. Hence
this question is decided against the plaintiff.
45. In denouement, it can be stated that the judgment and decree
in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff
from asserting his possession over the property. Prayer in the suit for
prohibitory injunction is not maintainable by virtue of res judicata, bar under
Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific
Relief Act. If that be so, the suit for declaration could be regarded only as
one without seeking a consequential relief, which naturally flows from the
substantive relief. In the absence of a prayer for recovery of possession of
the property on the strength of title, the plaintiff cannot maintain a suit for
declaration simplicitor. The suit is bad for non-joinder of necessary parties.
From the facts proved, it is seen that the suit should have been instituted
within three years from the date when the right to sue first accrued.
Therefore, the suit is barred by limitation. It is made clear that this Court
has not made any pronouncement touching the correctness or legality of
Exts.B1 and B2 in favour of the defendant. Vexed question regarding the
right of management of the school cannot be decided in this suit in the
absence of the authorities concerned in the party array and also reckoning
nature of the pleadings and reliefs claimed.
In the result, the appeal is allowed. The concurrent findings in
O.S.No.243 of 2010 before the Court of Munsiff, Taliparamba and in
A.S.No.74 of 2015 before the Court of Subordinate Judge, Payyannur are
hereby set aside. The suit is dismissed. The parties are directed to suffer
their respective costs.
All pending interlocutory applications will stand closed.
A. HARIPRASAD, JUDGE.
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