JOHN Vs. THRESSYA

JUDGEMENT

(1.) DEFENDANTS 2 and 3 in O.S.220/63 on the file of the Munsiff Court,Irinjalakuda are the appellants.The suit against them was for declaration that the plaintiffs and others residing in the plaint schedule property are entitled to draw water from the well situated in the defendants 'property Sy.No.877/5,the well being situated at the close extremity of the property,and an injunction to restrain the defendants from interfering with that right.The plaint schedule property along with other properties belonged to one Antony,who subjected the properties to partition and in the partition 'A 'schedule was allotted to Lonappan and his brothers Vareeth and Chacko,'B 'Schedule to Vareed another son of Antony from whom the properties were purchased by the defendants.The C schedule was allotted to Ouseph and Luiz,the other two sons of Antony.Each of the three schedules - A,B and C - stated that a right to the extent of l/3rd in the well was also allotted to each of the three sharers.The suit was resisted by the defendants on the ground that the well mentioned in the partition deed was filled up and that the present well seen in the defendants 'property was dug by Vareed,the predecessor -in -interest of the defendants.Vareed the brother of the plaintiffs also had purchased the shares of the other heirs of deceased Lonappan in the properties in A schedule(present plaint schedule)and filed a suit O.S.570/56 to establish the l/3rd right over the well in the defendants property.That suit was filed by him as owner of the present plaint schedule property for and on behalf of the resident in the plaint schedule properties including the plaintiffs,with their consent and knowledge.Though that suit was decreed by the trial court,the same was dismissed in appeal and against the appellate decision S.A.140/59 was preferred to this court and here the parties compromised.Under the compromise Vareed was paid Rs.150/ - to dig a well in the plaint schedule property and accordingly a well was dug by Vareed,which is being used by the plaintiffs.The present suit,in the light of the above facts,is barred by res judicata.This contention was upheld by the trial court and the suit was dismissed;but in appeal,the lower appellate court set aside that decision and remanded the matter to the trial court for fresh disposal in the light of the observations made in the appellate judgment.

(2.) THE sole question for consideration is whether the suit is barred by res judicata by reason of the decision in the prior suit O.S.570/56.That suit was filed by Vareed,a brother of the plaintiffs for a declaration of the right over the well and also for a perpetual injunction.The fact is not denied that the present plaintiffs were not parties to that suit.The plaintiffs 'father(Lonappan)to whom 'the A schedule property was allotted in Ex -Pi partition had 5 children - two sons and 3 daughters.On Lonappan 's death the property devolved on his children of whom the plaintiffs are the unmarried daughters.The fact that they are possessed of a definite interest in the well cannot be denied.1/3rd right in the well was specifically mentioned in A schedule of Ex.P1.O.S.570/56 was,as already I indicated,filed by the plaintiffs 'brother Vareed.The plaintiffs and Vareed and the other children of Lonappan,all had distinct interest in the properties obtained by Lonappan in partition.As the plaintiffs were not parties to O.S.570/56,that decision cannot bind them.Their right in respect of the well was not a matter in issue in that suit.There is no basis for the defendants 'claim that the previous suit was one brought for and on behalf of the present plaintiffs as well.It was not a representative suit at all.Ex.D1 is the copy of the plaint in that suit.A reading of Ex.D1 would show that Vareed the plaintiff in that suit,had brought the suit solely in his own right,and it was alleged in the plaint that 1/3rd right in the well was exclusively his. ...[VERNACULAR TEXT OMITTED]...

(3.) EXPLANATION VI can apply only to suits in respect of public or private right clamed by the plaintiffs in common with others and all persons interested in such right shall be deemed to claim under the persons so litigating.The principle is that the persons represented by the party shall be deemed to claim under the plaintiff 's In the present instance the previous suit,as is clear from the extract made above,was not filed by Vareed in any representative capacity.The rule is well settled that where the previous suit was neither in form nor in substance filed in a representative capacity the subsequent suit brought by persons claiming the right cannot be held to be barred by Explanation VI of S.11(vide AIR 1949 All.761 ).In Sm.Sushama Roy v.Atul Krishna Roy(AI R 1955 Cal.624 ),a suit filed for framing a scheme of management of a temple was compromised;but the deity did not join in the petition of compromise and there was no mention of it in the decree of the court.A subsequent suit was instituted by the deity through one Sm.Sushama Roy who was the wife of the plaintiff(Monmatha)in the prior suit in her capacity as Shebaiti.Her case was that the scheme framed in the previous suit was not binding on the deity as it was against the deity 's interest and she prayed for a declaration that the scheme framed in the previous suit is void,inoperative and not binding upon the plaintiff and that a new scheme should be framed for the sheba -pooja of the deity and management of the properties.The defence in the suit was that the suit as framed was not maintainable and further that the deity having been made a party to the previous suit the scheme as framed therein was binding on it under the principles of res judicata.It was held that the rule of res judicata had no application.The learned Judges held: - It is not possible,in my judgment,to read the decree that was passed as a decree for or against the deity.So far as the deity was concerned as a party to the suit the court must be held to have passed no order at all.In my judgment,therefore,the courts below are wrong in thinking that the decree passed as on compromise between Monmatha and Atul will operate as res judicata as against the deity represented by a person appointed by the court,who was not a party to the compromise and who was not mentioned at all in the decree that was passed.