PADMANABHAN Vs. KUMARAN KOCHAN

JUDGEMENT

(1.) Plaintiffs 1 and 3 to 6 and the legal representatives of the 2nd plaintiff are the appellants. According to the plaint, the plaint schedule properties, two in number, belonged to two brothers, Poothathan Varathan and Poothathan Mallan, who were governed by the Hindu Law. Defendants 8 to 11 are the defendants of Poothathan Varathan and they are entitled to a half share in the plaint properties. The plaintiffs are the decendants of Poothathan Mallan. According to them, Mallan had only one son by name Madan and the plaintiffs are this Madans decendants. So, the plaintiffs were entitled to the remaining half of the plaint properties. The ancestor of the plaintiffs had mortgaged an oodukoor right over 1/4th of plaint item No. 1 to Mayacontan Kelan, the father of defendants 6 and 7. This was in renewal of a prior mortgage, Ext. D, of 1057 in favour of Poothathan Kumaran, father of defendants 1 to 3 and Mayacontan Kelan mentioned above. The plaintiffs stated that the mortgagees came into possession of this oodukoor 1/4th share in the plaint item No. 1 and the remaining 3/4th share was being enjoyed by the plaintiffs and defendants 8 to 11. The plaintiffs filed O.S. 871 of 1100 for the redemption of Ext. 1, the mortgage of 1075 to the ancestor of defendants 1 to 7. The mortgagees contended that they were in possession of 1/4th of the property as mortgagees and of another 1/4th as jenmis, being the heirs of Mallan Poothathan, the direct brother of Mallan Madan who was admittedly the ancestor of the plaintiffs and that, therefore, the building put up by them in the mortgage holding were not liable to be removed. The plaintiffs resisted this claim of defendants 1 to 7. But the defence contentions were accepted and they were allowed to retain the buildings put up by them in plaint item No. 1. The plaintiffs would say that a decision, or the question of the defendants title to the property, was out of the purview of that case and, as such, that decision was no bar to the present suit. Mallan Madan, according to them, had no brother by name Mallan Poothathan and defendants 1 to 7 are not members of Kuzhinjamvila family, to which the plaintiffs and defendants 8 to 11 belong. The present suit was, therefore, necessitated because of the finding in the redemption suit, that defendants 1 to 7 were not liable to remove the buildings from item No. 1 of the plaint schedule and since, on the strength of the said finding, defendants 1 to 7 were attempting to trespass into other portions of the plaint properties. The suit was, therefore, filed for a declaration of the plaintiffs right to the plaint properties. Another declaration that defendants 1 to 7 had only a mortgage right over a 1/4th share in the plaint schedule item No. 1 and that they were not entitled to any other right over the plaint properties was also sought for. An injunction was applied for to be issued against defendants 1 to 7 not to enter upon any portion of the plaint properties, except the portion held by them on mortgage. Defendants 1 to 7 contended that their ancestor, Mallan Poothathan, was the direct brother of Mallan Madan, who was the predecessor of the plaintiffs, that they were entitled to 1/4 share in the plaint schedule properties, that they were in possession of the same, that this suit was barred by res judicata by reason of the findings in O.S. 871 of 1100 and O.S. 851 of 1083, that the plaint properties were overvalued and unnecessary reliefs were prayed for with the object of bringing the suit within the jurisdiction of the District Court, to enable them to plead that the decision in O.S. 871 of 1100, filed in the Munsiffs Court, would not be a bar to the present contentions, and that the alleged title of the plaintiffs, if any, to the portion claimed by them was barred by limitation and adverse possession. The plaintiffs filed a replication in which it was stated that Mallan Madan had no brother by name Poothathan, that defendants 1 to 7 and the plaintiffs did not belong to the same family, that defendants 1 to 7 had no right over the plaint properties except that obtained by them on mortgage, that excluding the property thus mortgaged the remaining 1/4th share in item No. 1 was in the possession of the plaintiffs and that defendants 1 to 7 could not have perfected the title by adverse possession. The court below found that the present suit was unnecessarily overvalued and filed in the District Court, that the same would not affect the question of res judicata, that the present suit was barred by res judicata, by virtue of the decision in O.S. 871 of 1100 of the Munsiffs Court, that the findings in O.S. 851 of 1083 would not operate as res judicata, since the findings entered there were expunged by the appellate court in its decision evidenced by Ext. E, that Mallan Madan had a brother by name Poothathan who was the ancestor of defendants 1 to 7, that defendants 1 to 7 had, therefore, an oodukoor 1/4th right over the plaint items 1 and 2, that, in view of the finding as to title, no question of adverse possession would arise and that the plaintiffs wee not entitled to any relief. The suit was therefore dismissed with costs.

(2.) The first question for the consideration is whether the present suit is barred by res judicata by virtue of the decision in O.S. 871 of 1100 of the Neyyattinkara Munsiffs Court. O.S. 871 of 1100 arose under the following circumstances. The plaintiffs are admittedly entitled to 1/4th share in the plaint item No. 1. The plaintiffs ancestor, Mallan Madan had, on 1.10.1057, mortgaged that 1/4th share to Poothathan Kumaran, father of defendants 1 to 3, and Mayacontan Kelan, father of defendants 6 and 7. It was stated there that the mortgagees were in possession under a prior mortgage and that credit for the same had been given in this mortgage, copy of which was Ext. D. This was renewed in 1075 in the name of Mayacontan Kelan and Kochen Mayacontan, father of defendants 4 and 5. Ext. 1 is that document. O.S. 871 of 1100 was instituted by the plaintiffs to redeem this mortgage. Defendants 1 to 11 were defendants 1 to 11 in that suit also. In that case, the present plaintiffs had contended that the mortgagees had put up some buildings, which were scheduled there as item 2 to 4, in the mortgage holding and that they should be compelled to remove the same as they were put up without the mortgagors consent. Defendants 1, 5 and 6 contended that they had no objection to surrender the mortgaged properties on receipt of the mortgage amount and value of improvements, that defendants 8 and 9 were entitled to a half share in the property, that the remaining 1/4th share belonged to them, that the buildings in the property were put up in their capacity as owners of that 1/4th share, that, therefore, they should be allowed to retain possession of the buildings, and that the buildings should not either be recovered by the plaintiffs or compelled to be removed. The plaintiffs; by a replication, denied the allegations of the defendants. Ext. III is copy of the judgment of the Trial Court in that case. It was held that the mortgagees were to surrender the mortgaged holding on receipt of the mortgage amount of 375 fanams and value of improvements coming to 25 fanams and that they were not to remove any of the buildings as they put up the same in their capacity as part owners of the property. The plaintiffs suit was, therefore, dismissed as regards their claim to compel defendants 1 to 7 to remove the buildings. The plaintiffs took up the matter in appeal to the District court in A.S. No. 636 of 1103. The learned Judge was of the opinion that, since the decision of the Munsiff was made without raising issues as to whether defendants 1 to 7 were entitled to a 1/4th share in the property or whether the plaintiffs were entitled to a half share of the same including the mortgage right. The case should be sent back for findings after raising the issues relating to the different cases put forward by the plaintiffs and defendants 1 to 7 as to their title to the property. After remand, the Munsiffs Court recorded its finding that the plaintiffs were entitled to a half share in the property and that defendatns 1 to 7 had no right whatever in the property except the mortgage right and that the buildings should not be compelled to be removed; but should be recovered by the plaintiffs on payment of their value. These findings were objected to; and the learned District Judge elaborately went into the evidence in the case and entered a definite finding that the plaintiffs branch had only a right to 1/4th share in the property, that 1/4th share in the oodukoor belonged to the branch of defendatns 1 to 7, that it was the plaintiffs 1/4th share that had been mortgaged to the ancestor of defendants 1 to 7, that they put up the buildings in the property by virtue of their part ownership in the mortgaged property and that they were not to be compelled to remove those buildings. Ext. IV is copy of the judgment of the District Court after remand. Against this decree of the District Court, the present plaintiffs 1, 2, 3, 5 and 6 filed S.A. 599 of 1107 in the High Court. The findings of the District Court were upheld and the appeal was dismissed by the High Court. Ext. V is copy of the judgment in that case. That judgment was pronounced on 14.4.1110 and the present suit was filed on 6.2.1120 in the District Court.

(3.) Defendants 1 to 6 had contended that the present suit has been overvalued, so that the suit could be filed in the District Court. This was done with the object to overcome the effect of the decision in O.S. 871 of 1100, for that decision would operate as res judicata, only in case the present suit could be tried by the Munsiffs Court. The defendants had contended that the reliefs had been overvalued and in the replication the plaintiffs had no answer to the same. The allegations in the plaint would show that the valuation given was wrong and that it was deliberately done. The properties, scheduled in the plaint, are the entire properties in Lekkoms 22 and 23, now bearing the same survey No. 6011, with an extent of 9 acres and 89 cents. It is the market value for this entire property that is shown in the plaint. Admittedly, one half of these properties belonged to defendants 8 to 11 and 1/4th belonged to the plaintiffs. There could, therefore, have been dispute relating to only the remaining 1/4th of these properties and, to get a declaration of the plaintiffs title to this 1/4th, court fee on 1/4th of the market value for the properties was alone necessary. The allegations in paragraphs 2 to 6 in the plaint would show that the plaintiffs claimed one half of the plaint schedule properties. So, by the plaint schedule properties they meant the whole of plaint items 1 and 2. As mentioned already, there was absolutely no dispute as to the one half right belonging to defendants 8 to 11. That was conceded by all parties. If at all, the plaintiffs wee to pay only court fees on the market value for one half of the properties if they thought that their title to the same was in danger. In the plaint the market value of the plaint properties was shown to be 14500 fanams. They were liable to pay court fees only for one half of this, that is, for 7250 fanams. If that had been the correct valuation, the present suit could be tried by the Munsiff whose pecuniary jurisdiction extended to 1400 fanams. The court below had found that the suit had been overvalued intentionally and without any bona fides. That appears to be correct. If that be so, the present suit was one which could have been tried by the Munsiff. In Chitaleys Civil Procedure Code, 1950 edition, the decisions of the several High Courts on the point had been analysed and the principle that would govern cases of this nature was mentioned there thus at page 294 of volume I: