The Kerala High Court observed that where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment.

But where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title, the court noted.

The Court observed thus in a regular second appeal filed under Section 100 of the Civil Procedure Code (CPC) against the decree and judgment of the Munsiff’s Court, Chalakkudy which was confirmed by the Principal Subordinate Judge’s Court.

A Single Bench of Justice K. Babu held, “… the question of ownership of the thodu was only ancillary and incidental in O.S.No.462 of 2003, and the same was not necessary and essential for deciding the suit, Therefore, the contention that the issue as to the title was directly and substantially in issue in the previous suit, O.S.No.462 of 2003, is not sustainable, and there is no bar for challenging or resisting the claim of the tile by the plaintiff in the present suit by reason of the principle of res judicata. The substantial questions of law are therefore answered against the appellant/plaintiff.”

Advocate T.N. Manoj appeared on behalf of the appellant/plaintiff while Advocate Dhanya P. Ashokan appeared on behalf of the respondents/defendants.

In this case, the schedule property belonged to the plaintiff and the property of Mattathur Grama Panchayat was on the eastern boundary of the schedule property. The other defendants had property on the east and southern sides of the schedule property and preparations were made to convert a thodu lying on the east of the property as a pathway. The plaintiff attempted to protect the suit property by constructing a compound well but the Panchayat obstructed the same.

The said thodu belonged to the plaintiff and hence the matter was before the Trial Court. The Trial Court held that the plaintiff failed to establish her right over the thodu and dismissed the suit. The plaintiff challenged the said decree before the First Appellate Court but it confirmed the judgment of the Trial Court. Therefore, she approached the High Court.

The High Court after hearing the contentions of the counsel for parties noted, “The learned counsel submitted that even in a suit for an injunction when the title is an issue, to grant injunction, the issue directly and substantially arises in that suit between the parties and the finding, which has become final, would operate as res judicata in a subsequent suit based on the title where the same issue directly and substantially arises between the parties.”

The Court said that the question of whether the plaintiff was entitled to an injunction could be decided with reference to the finding on possession alone, and substantial pleadings on the question of title of the thodu were not set up therein by the parties. Hence, it was of the view that the question of ownership of the thodu was only ancillary and incidental, and the same was not necessary and essential for deciding the suit.

“In Sayed v. Ummer the Supreme Court has considered Sulochana Amma v. Narayanan Nair and held that the tests referred to in Sulochana Amma were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary. In Sayed, the Apex Court further observed that it all depends on the facts of each case and whether the finding as to title was treated as necessary for the grant of an injunction in the earlier suit and was also the substantive basis for the grant of injunction”, it also said.

Accordingly, the High Court dismissed the regular second appeal.

Cause Title- Elsy Francies v. Secretary, Mattathur Grama Panchayath & Ors. (Neutral Citation: 2024:KER:6937)


Appellant: ---

Respondents: Advocates Venugopal M.R. and M.J. Polly

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