LAKSHMI Vs. KUNJU DIVAKARAN

JUDGEMENT

(1.) The appellants are the defendants 1 and 2 in O.S. 187/ 2001 of Sub court, Kottayam. They are the plaintiffs in O.S. 157/1995 of that Court. Both suits were jointly tried and disposed of by a common judgment. O.S.157/1995 was filed by the appellants to set aside the judgment and decree in O.S. 13/1995 of Munsiff's Court, Vaikom and for declaration of their title and for recovery of possession. Defendants therein filed the suit O.S. 187/2001 for a permanent prohibitory injunction restraining the appellants from trespassing into the plaint schedule property.

(2.) O.S. 13/1985 was filed by the contesting respondents for partition and separate allotment of the shares. The husband of the first appellant who is the father of the 2nd appellant contested that suit contending that the property was obtained by him directly on lease and that he had obtained purchase certificate in respect of the said property and that the plaintiff therein and other defendants (supporting the plaintiff in O.S. 13/1995) have no right over the plaint schedule property. In that suit it was held that the property was originally obtained on lease by the father of the first appellant's husband who was the third defendant in O.S. 13/1985. It was held in O.S. 13/1985 that the purchase certificate obtained by the 3rd defendant therein was on behalf of all the legal heirs of his deceased father and that the purchase certificate so obtained by him will enure to the benefit of all the legal heirs of his father . Thus a preliminary decree for partition was passed in that suit. The 3rd defendant then filed appeal as A.S. 185/1986. That was dismissed. He again challenged that appellate judgment before this Court in Second Appeal S.A. 742/1985. That was also dismissed confirming the judgment of the courts below. Thereafter, the first defendant in O.S. 13/1985 applied to the trial court for passing a final decree in terms of the preliminary decree passed in O.S.13/1985. There also the third defendant therein appeared and contested the matter. All his contentions were rejected by the trial court and final decree was passed. That was also challenged by him by filing appeal as A.S. 19/1993. That was dismissed by the appellate court on 12 -7 -2004. , After the appeal against the final decree was dismissed the first defendant therein filed application for execution of the final decree and for delivery of the property which was set apart to his share. When delivery was ordered, the 3rd defendant again approached this Court by filing C.R.P. 921/1995 . That was also decided against him. This Court directed that the property allotted to the first defendant be delivered to him in execution. It was thereafter the suit was filed by the wife and son of the 3rd defendant as O.S. 187/2001 contending that the judgment and decree passed in O.S. 13/1985 are not binding on them and that they are entitled to get the plaint schedule property declared and for recovery of possession of plaint schedule property shown therein.

(3.) The contesting respondents contended that on the strength of the alleged settlement deed executed by the third defendant in O.S. 13/1985 the appellants had not obtained any right over the property since the appellants were set up by the third defendant only to get at the property . This is the third round of litigation. Undaunted by the successive defeat in the suit, the third defendant was bent upon litigating through his wife and son. The fact that he had executed a settlement deed in favour of his wife and son would create no better title in them since the appellants can claim title only through the third defendant in O.S. 13/1985 who had suffered a verdict against him. In the present case also the contention is that the third defendant had obtained oral lease independently and in view of the fact that the purchase certificate was obtained by the third defendant, the plaintiff and in O.S. 157/1995 are entitled to get a declaration of their title and to get recovery of possession of the same from the respondent. As pointed out earlier the third defendant had contested the suit and the final decree petition throughout and it was only later when he realised that it is not possible for him to retain the property in his own possession, he executed the settlement deed. Since it was already held in the earlier litigations that the purchase certificate obtained by the 3rd defendant would enure to the benefit of all the legal heirs of his father and that the lease was actually in favour of the third defendant's father, the appellants cannot claim any right over the plaint schedule property. The contention that these appellants were not made parties in the earlier proceedings and so the decree and judgment are not binding on them, cannot be accepted, since the appellants are litigating under the title alleged to be obtained by the third defendant in O.S. 13/1985 against whom a decree was passed holding that he had no independent right over the plaint schedule property. The third defendant is bound by the preliminary decree and final decree passed in the earlier proceedings and he is also bound by the delivery effected pursuant to the order passed in C.R.P. 921/1995.