YESODA Vs. KUNHAMBU

JUDGEMENT

(1.) Defendant in O.S.No. 50 of 1987 on the file of Sub Court, Payyannur is the appellant in the second appeal. Respondent plaintiff filed the suit for recovery of possession of the plaint schedule property on the strength of his title. The plaintiff alleged that the plaint schedule property originally belonged to Someswari Devaswom and it was outstanding on lease in favour of Cheriya Raman, Chandukunhi and Koran Panicker. These persons assigned the leasehold right in favour of one Kunnath Mathi. Mathi had been in possession and was raising cultivation in the property. The plaintiff alleged that on 1-11-1977 Mathi assigned the right to the plaintiff. The plaintiff later purchased jenmi right of the property in S.M. 834/1978 of the Land Tribunal, Taliparamba. The appellant defendant contested the suit and alleged that the respondent plaintiff has no title over the plaint schedule property and the property originally belonged to Kunnath Mathi, the defendant's mother, and in 1966 she entrusted the property to the defendant and the defendant purchased landlord's right in O. A. 1038/76 of the Land Tribunal, Taliparamba. The defendant also contended that the plaintiff filed O.S.191/78 for injunction and the decision in that suit operates as res judicata and, therefore, a second suit is barred.

(2.) The Trial Court found that the plaintiff has got title to the plaint schedule property and therefore, the recovery of possession of the property was, allowed. This finding was confirmed in A.S. 86 of 1988. The plea of res judicata raised by the defendant was found against by the court. .

(3.) The main question that arises for consideration is whether the decision in the earlier suit in O.S. 191 of 1978 operates as res judicata as regards the finding of title of the plaintiff in respect of the plaint schedule property. Eventhough O.S. 191 of 1978 was a suit for injunction filled by the plaintiff to restrain the present appellant from trespassing into the plaint schedule property, the question of title was also considered and decided in that case. In that case, the defendant alleged that the plaintiff therein had no title to the property. In view of that contention plaintiff paid court fee under S.27(a) of the Court Fees and Suits Valuation Act and issue was framed regarding the plaintiff's title to the property. After having considered the question in detail it was found by the Trial Court that the plaintiff Kunhambu has no title to the plaint schedule property. Ext.A7 is the printed copy of the judgment in O.S.191/78. Issue No.1 in that suit is whether the plaintiff has title or possession of the plaint schedule property. A finding is entered in the following words in the last portion of Para.11 of the judgment, which reads: