Sunday 15 January 2017

Whether suit for declaration simplicitor is maintainable without claiming consequential relief?

   In denouement, it can be stated that the judgment and decree

in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff

from asserting his possession over the property. Prayer in the suit for

prohibitory injunction is not maintainable by virtue of res judicata, bar under

Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific

Relief Act. If that be so, the suit for declaration could be regarded only as

one without seeking a consequential relief, which naturally flows from the

substantive relief. In the absence of a prayer for recovery of possession of


the property on the strength of title, the plaintiff cannot maintain a suit for

declaration simplicitor. The suit is bad for non-joinder of necessary parties.

From the facts proved, it is seen that the suit should have been instituted

within three years from the date when the right to sue first accrued.

Therefore, the suit is barred by limitation.
IN THE HIGH COURT OF KERALAAT ERNAKULAM

                                                        PRESENT:

                            MR. JUSTICE A.HARIPRASAD

                  6TH DAY OF JANUARY 2017

                            RSA.No. 855 of 2016 
       

                E.N CHANDRAN
             Vs

                VALSAN MATATHIL
               


              Concurrent findings by the courts below in a suit for declaration

and consequential permanent prohibitory injunction reliefs are challenged

in this second appeal. Both the courts below found in favour of the plaintiff's

case and decreed the suit. The defendant is in appeal. For the sake of

convenience and clarity, the parties are hereinafter referred to as the

plaintiff and defendant.

       2.     Relevant facts, in nutshell, are as follows: Plaint schedule

property, inclusive of an aided school, by name Poomangalam U.P.School,

originally belonged to M.P.Kunhikannan.                 On his death the property

devolved on his wife Lakshmi and children, Indira, Madhusoodanan,

Saraswathi and others. Deceased Kunhikannan's children released their

entire rights over the property and school to their mother Lakshmi on

09.06.1981. Lakshmi thereby became the absolute owner in possession of

the plaint schedule property. Lakshmi thereafter gifted the plaint schedule

property to her daughter Indira as per a registered gift deed dated

03.11.1999 (Ext.A3). Having accepted the gift, the property devolved on



Indira. Later, Indira's brother Madhusoodanan caused Lakshmi to execute

a registered sale deed on 15.11.2002 in his favour in respect of the very

same property. Ext.B1 is that document. It was also realised by Indira that

Lakshmi had executed another deed on 26.10.2002 (Ext.B11), purporting

to cancel Ext.A3 gift deed.

       3.       Indira, then filed O.S.No.157 of 2003 before the Munsiff's

Court, Taliparamba for a permanent prohibitory injunction relief against her

siblings,viz., Madhusoodanan and Saraswathi.          In the suit, she had

obtained an interim order of injunction. In the written statement, one of the

defendants, Madhusoodanan, raised a counter claim seeking prohibitory

injunction against the plaintiff. Subsequently, the suit was dismissed for

default and the counter claim set up by Madhusoodanan was decreed

exparte. Meanwhile, Madhusoodanan executed a registered sale deed on

02.07.2005 (Ext.B2) transferring the plaint schedule property and the

school      to    the  defendant.  According   to   the   plaint averments,

Madhusoodanan had no right, title or possession over the property and

therefore, the sale deed executed by him is of no legal consequence. The

defendant thereafter applied for transfer of ownership and managership of

the school representing himself as the Chairman, Malanad Educational and

Charitable Trust (in short, "the Trust") by submitting an application before

the authorities concerned without complying with the procedure under the

Kerala Education Rules,1959 (in short, "KER"). The plaintiff contended that



the so-called Trust is not an educational agency, permitted to establish and

maintain a school. While so, Indira transferred all her rights and interests

over the plaint schedule property to the plaintiff as per a sale deed dated

02.08.2005 (Ext.A4). The plaintiff would contend that after the assignment,

he became the absolute owner in possession of the plaint schedule

property.       The plaintiff approached the authorities in the Revenue

Department as well as the Kerala Education Act, 1958 and KER, claiming

right over the property. Mutation effected to the name of defendant by the

revenue authorities was kept in abeyance when they understood that a

mutation in respect of the property had already been effected in the name

of Indira on the basis of Ext.A3. The plaintiff approached the Tahsildar,

Taliparamba complaining refusal by the Village Officer to accept basic tax

from him.       Tahsildar cancelled the possession certificate, site plan, basic

tax receipt, etc. issued to the defendant and directed the parties to

approach a civil court for a proper adjudication of the disputes.           On

27.05.2006, Lakshmi executed a power of attorney in favour of the plaintiff

appointing him as a correspondent as provided in KER to manage the day

today affairs of the school. Subsequently, the Director of Public Instructions

(in short, "DPI") issued an order dated 16.12.2006 according sanction to

transfer management of the school in favour of the defendant as Chairman

of the      Trust.   The plaintiff challenged the order of DPI before the

Government of Kerala.         Government passed an order permitting the



plaintiff to continue as manager of the school.   The defendant thereafter

tried to trespass into the property raising false claims. Therefore the suit

was filed.

       4.       Facts that the U.P.School was originally established by

deceased Kunhikannan and during his life time, he functioned as manager

are admitted in the written statement. It is further admitted that after his

death, his wife and children inherited the property and also that

Kunhikannan's children released their rights in favour of Lakshmi. Since

then, Lakshmi functioned as manager of the school till her death. It is

contended that her son Madhusoodanan acted as manager of the school

during her life time as authorised by her. Contention in the plaint that

Lakshmi had executed a gift deed in favour of her daughter Indira is false.

Indira never got possession of the property. Alleged gift deed, viz., Ext.A3

is a sham document, which never came into existence. It is also contended

that the gift deed was obtained by undue influence, force and coercion.

Indira never accepted the gift. Lakshmi transferred 20 cents of land to

Madhusoodanan out of her one acre property. Lakshmi thereafter had title

and possession over 80 cents only. Lakshmi had cancelled Ext.A3 by

Ext.B11. Thereafter, Lakshmi sold 80 cents of property to Madhusoodanan

from whom the defendant took the assignment. Lakshmi had transferred

the property and school, along with its managership. Madhusoodanan

effected mutation in his name and he was paying land revenue. Plaintiff


has no title or possession over the property. He has no authority to act as

manager of the school. Madhusoodanan, as absolute owner of the school

and appurtenant land measuring 80 cents, assigned the property to the

Trust as per Ext.B2. The suit is bad for non-joinder of necessary parties.

O.S.No.157 of 2003 filed by Indira against the predecessor-in-title of the

defendant was dismissed and the counter claim in the suit was decreed.

The decree has become final. Thus the present suit is barred by res

judicata. The suit is barred by law of limitation as well.

       5.       The trial court had framed issues and considered the

voluminous documentary and oral evidence produced by both the sides.

Court of first instance found that the suit is not barred by limitation and also

that it is not bad for non-joinder of necessary parties. It further found that

the documents relied on by the plaintiff conferred a valid title and

possession on him and therefore he is entitled to get the declaration and

prohibitory injunction prayed for.

       6.       On a re-appreciation of the evidence, the lower appellate court

concurred with the conclusions of the trial court and dismissed the appeal.

       7.       Heard Sri.P.B.Krishnan, learned counsel for the appellant and

Sri. Philip T. Varghese, learned counsel for the respondent.

       8.       The substantial questions of law, rearranged in the order of

preference, are thus:

       (1)      In view of the finality attached to the judgment and decree in



O.S.No.157 of 2003 and the counter claim, can the plaintiff contend that he

is in possession of the suit property on the date of filing the present suit?

       (2)      Is not the suit, in regard to the grant of permanent prohibitory

injunction, barred by res judicata?

       (3)      In the absence of a prayer for recovery of possession, is not

the suit as framed barred under the proviso to Section 34 of the Specific

Relief Act, 1963?

       (4)      Is the suit barred by limitation under Article 58 of the Limitation

Act, 1963 vis-a-vis the relief of declaration?

       (5)      In view of Section 7(5) of the Kerala Education Act, 1978, is

not the Manager of an aided school in possession of the movable and

immovable property of the school?

       (6)      Is the suit bad for non-joinder of necessary parties on account

of the non-impleadment of Malanad Education and Charitable Trust and

Madhusoodanan, the assignor in Ext.B2?"

       9.       Before dealing with the above substantial questions of law, it is

essential to take note of certain admitted facts and also those facts which

have become final by the concurrent findings of the courts below.

       10.      Substantive prayers in the plaint are for a declaration that the

plaintiff is the absolute owner of the plaint schedule property and also for a

permanent prohibitory injunction restraining the defendant, his men and

agents from interfering with the plaintiff's peaceful possession and



enjoyment of the plaint schedule property. As observed by the courts

below, the facts, that the plaint schedule property originally belonged to

M.P.Kunhikannan and on his death, it devolved on his wife and children,

that children of M.P.Kunhikannan had released their rights in the property in

favour of their mother Lakshmi and that Lakshmi was the manager of

Poomangalam U.P.School till her death, are admitted. The real controversy

is whether the plaintiff derived title and possession over the property by

virtue of Ext.A4 on the basis of Ext.A3 gift deed or the defendant obtained

title and possession on the basis of Ext.B2, founded on Ext.B1? An answer

to the above question will ease out the problem.

       11.      It is an admitted fact that the plaintiff's assignor Indira had filed

a suit against the defendant's assignor Madhusoodanan before the trial

court as O.S.No.157 of 2003. Exts.B3 and B4 are the certified copies of

the decree and judgment respectively in the above suit. It can be seen

from Exts.B3 and B4 that O.S.No.157 of 2003 filed by Indira, for a

permanent prohibitory injunction restraining the defendants and their men

from committing any waste, damage, mischief, injury or loss to the plaint

schedule property, building, movables, etc. and also from causing trouble,

mischief or inconvenience to the plaintiff in peacefully enjoying the plaint

schedule property, was dismissed for default. In that suit, the defendant

had raised a counter claim for injuncting the plaintiff and her men from

trespassing into the counter claim schedule property (which is same as the



plaint schedule property in the suit) or committing any acts of waste

thereon or obstructing the peaceful possession of the property by the

defendant (counter claimant). Fact that the counter claim was decreed is

unchallengeable.

       12.      Ext.B5 is an application under Order IX Rule 9 of the Code of

Civil Procedure, 1908 (in short, "the Code") filed to restore the suit. A

prayer to set aside the exparte decree in the counter claim was also made.

It is evident from Ext.B5 that the present plaintiff had also joined as an

applicant along with the original plaintiff, Indira.     This application was

considered and dismissed by the trial court. Ext.B6 would show that Indira

had filed C.M.A.No.40 of 2009 before the Court of Subordinate Judge,

Payyannur challenging the orders passed on her individual applications

before the trial court to restore the suit, to set aside the decree in the

counter claim and to condone delay in filing the said applications. The

lower appellate court found that the appeal was delayed by one year, one

month and 24 days. The court found no reason to condone the delay.

Hence the petition to condone delay and consequently, the appeal were

dismissed. It is therefore indisputable that the dismissal of O.S.No.157 of

2003 and decreeing the counter claim in the suit have attained finality. The

legal effect of this fact has a direct bearing on the decision in this case.

       13.      Going by chronology of events, it can be seen that Lakshmi

had executed Ext.A3 in favour of her daughter Indira on 03.11.1999.



Thereafter, she executed a deed of cancellation (Ext.B11) on 26.10.2002.

Subsequently she executed Ext.B1 assignment deed in favour of her son

Madhusoodanan on 15.11.2002.           Then Ext.B2 assignment deed was

executed by Madhusoodanan in favour of the defendant on 02.07.2005.

Thereafter, on 02.08.2005 Indira assigned her rights in favour of the plaintiff

as per Ext.A4. It is evident from Exts.B3 and B4 that the suit, O.S.No.157

of 2003, was dismissed and the counter claim was decreed on 08.02.2008.

Therefore it is very clear that both Indira and Madhusoodanan had

assigned the disputed property, each asserting an independent right,

during the pendency of O.S.No.157 of 2003 before the Court of Munsiff,

Taliparamba. In otherwords, the documents through which the plaintiff and

defendant claim title are transactions lis pendens.

       14.      Records reveal that there was a scramble for management of

the school. Eventually the orders passed by the DPI and the Government

were challenged before this Court. As per a proceedings dated 16.12.2006

the DPI approved transfer of management involving a change of ownership

of the school and appurtenant land in favour of the defendant. That was

questioned by the other party before the Government and as per order

dated 05.03.2007, the Government quashed the order passed by the DPI.

That Government order was challenged in W.P.(C) No.12104 of 2007

before this Court. Ext.B12 is the judgment in that proceedings. A learned

single Judge disposed of the writ petition with the following directions:


                       "In the above circumstances, Exts.P17 and

                P20 orders are quashed.         Until the civil courts

                finally dispose of the suit, if any, pending before it,

                the petitioner shall be allowed to continue as

                manager of the school. The educational authority

                shall pass orders in respect of the management of

                the school only in accordance with the decision of

                the civil court on the question of title to the

                properties of the school.        The writ petition is

                allowed of as above."

       15.      This judgment was challenged in a writ appeal, viz.,

W.A.No.1653 of 2011, and ultimately the appeal was also dismissed (see

Ext.B13).        Pursuant to the directions by this Court in the above

proceedings, the defendant is now continuing as manager of the school, of

course subject to the result of the suit. Ext.B13 judgment was challenged

in a special leave petition before the apex Court. But, the court did not

entertain the petition.

       16.      I shall now revert back to the questions of law raised.

       Questions 1 & 2:

       17.      Sri.P.B.Krishnan contended that the courts below misconstrued

the factual and legal issues involved in the case. According to him, frame of

the suit itself is defective. The courts below failed to take note of the

adverse impact of the judgment and decree in O.S.No.157 of 2003 and the

decision in the counter claim on the reliefs claimed in the present suit.



Sri.P.B.Krishnan further contended that the plaintiff has no locus standi to

initiate any legal action asserting his possession over the property on

account of the bar of res judicata.

       18.      Per contra, Sri. Philip, learned counsel appearing for the

plaintiff, contended that case of the defendant that he is the owner of the

property itself is unsustainable. Ext.B2 does not confer any right or

possession on the defendant as his assignor Madhusoodanan himself had

not derived any right over the property by virtue of Ext.B1 document. As

long as the transfer of property through Ext.B3 gift deed in favour of Indira

remained in force, deceased Lakshmi could not have executed Ext.B1 in

the name of Madhusoodanan. More over, Ext.B11 has no validity in the

eye of law. In that situation, Sri.Philip contended, the defendant has no

right to raise any of the above arguments. It is the definite case of the

plaintiff that deceased Lakshmi had executed Ext.A3 gift deed in favour of

the plaintiff's assignor (Indira) and the donee had accepted the gift during

the life time of donor. Therefore, on the basis of a completed gift, Indira

became owner of the property and she was in possession. For a valid

consideration the property was purchased by the plaintiff as per Ext.A4

document. Therefore, the suit is perfectly maintainable. With regard to the

management of the school, Lakshmi herself functioned as manager during

her life time and thereafter, the right of management of the school lawfully

vested with the plaintiff.



       19.      Dismissal of O.S.No.157 of 2003 and decreeing the counter

claim therein have attained finality. Admittedly the prayers in the suit as

well as that in the counter claim were for permanent prohibitory injunction

reliefs against one another. Virtually, by decreeing the counter claim, the

plaintiff's assignor Indira had been injuncted from entering the property,

causing damages and also obstructing the peaceful possession of

property by the counter claimant (assignor of the defendant). Indisputable

is the proposition of law that the decree in the counter claim will operate as

res judicata insofar as the prayer for prohibitory injunction claimed in this

suit is concerned.

       20.      Section 11 of the Code enunciates a principle that applies as

between a past litigation and a future litigation. When a matter, whether on

a question of fact or on a question of law, has been decided between two

parties in one suit or proceedings and the decision has become final, either

because no appeal was taken to a higher court or because the appeal was

dismissed or no appeal lies, neither party will be allowed in a future suit or

proceedings to canvass the matter again. This principle of res judicata is

embodied in Section 11 of the Code in relation to suits.

       21.      The principle that an ex parte decree operates to render the

matter decided res judicata in a subsequent suit is no more res integra.

The Supreme Court in Saroja v. Chinnusamy (AIR 2007 SC 3067) has

held that an ex parte decree passed against a defendant could be taken as



a final decision on hearing and as such it would operate as res judicata in

the subsequent suit. It has been held that in order to attract the rule of res

judicata contained in Section 11 of the Code, the following conditions must

be satisfied:

                     "(i)      There must be two suits - one former

              suit and the other subsequent suit;

                     (ii)      The Court which decided the former suit

              must be competent to try the subsequent suit;

                     (iii)     The matter directly and substantially in

              issue    must        be  the  same     either actually or

              constructively in both the suits.

                     (iv)      The matter directly and substantially in

              issue in the subsequent suit must have been heard

              and finally decided by the Court in the former suit;

                     (v)       The parties to the suits or the parties

              under whom they or any of them claim must be the

              same in both the suits;

                     (vi)      The parties in both the suits must have

              litigated under the same title."

The contention raised by the appellant in the above case that since the

former suit was decided ex parte, it could not be said that it was finally

heard and decided by the court and therefore, condition No.(iv) was not

satisfied was repelled by the Supreme Court. The following quotation from

paragraph No.9 of the decision may be relevant for our purpose:

                     ".............. It is well settled that an ex parte

              decree is binding as a decree passed after contest on


              the person against whom such an ex parte decree has

              been passed. It is equally well settled that an ex parte

              decree would be so treated unless the party

              challenging the ex parte decree satisfies the court that

              such an ex parte decree has been obtained by fraud.

              Such being the position, we are unable to hold that

              Condition No.(iv) was not satisfied and accordingly it

              cannot be held that the principle of res judicata would

              not apply in the present case. ................"

Therefore, the fact that the decree passed in O.S.No.157 of 2003 will bar

the contentions of the parties to the suit or the parties under whom they or

any of them claim is unchallengeable.

       22.      Another legal aspect to be mentioned is that by virtue of the

statement of law in Order IX Rule 9 of the Code, where a suit is wholly or

partly dismissed under Rule 8 of Order IX, the plaintiff shall be precluded

from bringing a fresh suit in respect of the same cause of action. But, he

may apply for an order to set the dismissal aside and if he satisfies the

court that there was sufficient cause for his non-appearance when the suit

was called on for hearing, the court shall make an order setting aside the

dismissal upon such terms as to costs.

       23.      In this context, a question a may arise whether the plaintiff, who

is only an assignee from the plaintiff in O.S.No.157 of 2003, is barred from

instituting a fresh suit on the same cause of action? This question was

considered by the Supreme Court elaborately in Suraj Ratan Thirani and


Others v. The Azamabad Tea Co. & Others (AIR 1965 SC 295). It was

observed that the term "cause of action" is to be construed with reference

rather to substance than to the form of action. It was held that if essential

bundle of facts on which the plaintiff based his/her title and the right to relief

were identical in two suits, then the bar under Order IX Rule 9 of the Code

will apply to the second suit, even if it was brought by an assignee from the

plaintiff in the first suit.      Following quotation may be relevant for our

purpose:

                     "We are not however impressed by the

              argument that the ban imposed by Order 9 Rule 9

              creates merely a personal bar or estoppel against

              the particular plaintiff suing on the same cause of

              action and leaves the matter at large for those

              claiming under him. Beyond the absence in Order 9

              Rule 9 of the words referring 'to those claiming under

              the plaintiff' there is nothing to warrant this argument.

              It has neither principle, nor logic to commend it .........

              The rule would obviously have no value and the bar

              imposed by it would be rendered meaningless, if the

              plaintiff whose suit was dismissed for default had

              only to transfer the property to another and the latter

              was able to agitate rights which his vendor was

              precluded by law from putting forward."


       24.      The above said principle was followed in M/s.Parasram

Harnand Rao v. M/s.Shanti Parsad Narinder Kumar Jain and another

((1980) 3 SCC 565).

       25.      It is therefore well settled that if there is identity of cause of

action between the earlier suit, which was dismissed for default, and the

present suit, though it is instituted by an assignee of the plaintiff in the

earlier suit, the bar under Order IX Rule 9 of the Code will be attracted.

Even though the plaintiff in this case may contend that the second suit by

the assignee of the plaintiff in O.S.No.157 of 2003 is filed on a different

cause of action, it may be an insurmountable task for him to claim any

benefit because there is a clear identity of cause of actions in both the

suits.

       26.      This Court in Kesava Bhat v. Subraya Bhat (1979 KLT 766),

speaking through a Bench consisting of five learned Judges, succinctly

held that in suits for permanent injunction, the courts are concerned only

with the question of possession of the property - the nature and character

of possession is immaterial. Further, it is held that if the plaintiff does not

make out possession, there is no need at all to consider whether the

defendant is in possession and if so, in what character or capacity. A

consistent view has been taken by this Court that in a suit for injunction the

plaintiff has to prove possession over the property as on the date of

institution of the suit.         This view derives support from various



pronouncements by the apex Court too. Applying the above test, it can be

seen that the plaintiff's assignor Indira failed to prove that she was in

possession of the property as on the date of filing O.S.No.157 of 2003 and

the defendant in the suit, viz., Madhusoodanan (assignor of the defendant

in this case) could establish that he was in possession of the property on

the relevant date. This finding, having attained finality, cannot be disturbed

in view of the application of Section 11 of the Code.

        27.     Recitals in the plaint in this case would show that the suit

happened to be filed for the reason that on 20.05.2010 the defendant tried

to trespass into the plaint schedule property by making false claims

thereon. In paragraph 11 of the plaint, the facts that O.S.No.157 of 2003

was filed by Indira, that later the suit was dismissed for default and that the

counter claim was allowed are explicitly stated. However, the plaintiff raised

a contention that the above decree could not bind him as he is in

possession of the properties. The question arising for consideration is

whether the plaintiff can claim to be in possession of the property in view of

finality of the decree in O.S.No.157 of 2003 and that in the counter claim?

The answer could be in the negative only. The plaintiff cannot be heard to

say that he is in possession of the property by virtue of Ext.A4 because of

operation of the rule in Section 11 of the Code. In the previous round of

litigation, a competent court had found that the assignor of the plaintiff was

not in possession of the property. That apart, it was also found in the



counter claim that the defendant's assignor Madhusoodanan was in

possession of the property. In the light of the fact that these findings have

become final, the plaintiff is barred from raising a contention in the present

suit that he is in possession of the property by virtue of an assignment from

the plaintiff in O.S.No.157 of 2003. Therefore, this question can only to be

decided against the plaintiff.

       28.      In addition to the above aspect, the law laid down by the

Supreme Court in Suraj Ratan Thirani's case (supra) makes amply clear

that the bar created by Order IX Rule 9 of the Code for a fresh suit will work

not only against the plaintiff in the suit dismissed for default, but also

against his assignee. Therefore, this legal principle also operates against

the contentions of the present plaintiff.

       29.      Sri. P.B.Krishnan strongly contended that the plaintiff is

debarred from raising a contention that he is in possession of the property,

for another reason too. According to him, when a defendant suffers a

decree in a previous suit for prohibitory injunction, he is perpetually

enjoined from asserting any right over the property.            To buttress this

contention, Sub-section (2) of Section 37 of the Specific Relief Act, 1963 is

relied on. The provision reads as follows:

                    "(2)    A perpetual injunction can only be

               granted by the decree made at the hearing and

               upon the merits of the suit; the defendant is thereby

               perpetually enjoined from the assertion of a right,



               or from the commission of an act, which would be

               contrary to the rights of the plaintiff."

The first limb of the Section is not applicable to this case, as it deals with

temporary injunctions.

       30.      On a careful reading of Section 37(2) of the Specific Relief Act,

it can be seen that a perpetual injunction can only be granted by a decree

made at the hearing and upon the merits of the suit. A plaintiff seeking a

perpetual injunction against trespass, with respect to an immovable

property, will have to establish that he is in possession of the property on

the date of suit. Besides, he will have to establish that the principles in

equity are in his favour for granting an injunction decree and no ground

under Section 41 of the Specific Relief Act works against him to deny the

injunction relief.

       31.      Axiomatic is the proposition of law that no suit or counter claim

in a suit shall be decreed without the plaintiff or the counter claimant, as the

case may be, establishing his right to get a decree in his favour. In other

words, no suit shall be decreed merely for the reason that the defendant

did not put up a contest. On a perusal of Exts.B3 and B4, there are reasons

to hold that though the trial court dismissed the suit for default, the counter

claim was decreed after examining the merits of the case. It is pertinent to

note that the plaintiff in this case has no contention that the findings in

O.S.No.157 of 2003 were procured by perpetrating any fraud on the court



or any other similar vitiating circumstances. It is well settled that a counter

claim in a suit should be treated as a cross suit. If that be so, a decree

passed in the counter claim raised by the defendant in O.S.No.157 of 2003

will enjoin the defendant in the counter claim (plaintiff in the suit) from

asserting any right which would be contrary to the rights of the counter

claimant derived from the decree. Therefore, by virtue of Section 37(2) of

the Specific Relief Act, the plaintiff shall not be allowed to make any

assertion of a right based on possession in view of the fact that his

assignor had suffered a permanent prohibitory injunction decree.

       32.      Now a question may arise as to whether the assignee is bound

by a permanent prohibitory injunction decree passed against the assignor?

This question was answered by a Division Bench of this Court in Rajappan

v. Sankaran Sudhakaran (1997 (1) KLT 748). The principle reads as

follows:

                     "In the face of S. 146 of the Code, the

               judgment debtors cannot contend that they are not

               bound to obey the decree for injunction granted

               against their predecessor-in-interest restraining him

               from tampering with the boundary of the property or

               from entering the property of the decree holder or

               from committing any acts of waste therein. To permit

               such a plea would be to ignore the principle of

               public policy embodied in Ss. 11 and 146 of the

               Code of Civil Procedure on the one hand and S. 52



               of the Transfer of Property Act on the other. The

               contention on behalf of the legal representatives of

               the judgment debtor is that the decree holder is

               bound to file another suit against them for the

               identical relief. In such a suit, can the legal

               representatives of the judgment debtor put forward

               a claim which has already been concluded by the

               decree against their predecessor-in-interest? Can

               they say that the boundary had not been properly

               fixed in the earlier litigation and they are entitled to

               show that the boundary between the properties lay

               elsewhere? According to us, they cannot. They

               would be barred by resjudicata from so doing since

               resjudicata bars not only the parties to the suit but

               also persons who claim under the parties to the suit

               and are litigating under the same title. There is no

               justification for whittling down the scope of S. 146 of

               the Code and to insist that a fresh suit must be filed

               anytime a stranger to the decree succeeds to the

               property of the judgment debtor in the prior litigation

               who has suffered a decree."

A learned Single Judge, following the above decision, held in Jihas v.

Salim (2014 (2) KLT 1004) that a decree granting injunction to do or not to

do a particular act or thing in the land would run with the land

notwithstanding the change of ownership. So, this aspect also goes against

the plaintiff.

       33.      Learned author William Williamson Kerr in his treatise on the


Law and Practice of Injunctions (sixth edition) says that perpetual

injunctions are such as form part of the decree made at the hearing upon

merits. The perpetual injunction is in effect a decree and concludes a right.

The following quotation is relevant for our purpose:

                     "The jurisdiction to grant a perpetual injunction

               is founded on the equity of relieving a party from the

               necessity of bringing action after action at law for

               every violation of a common law right, and of finally

               quieting the right, after a case has received such full

               decision as entitles a person to be protected against

               further trials of the right."

       34.      From the above discussion, it is very much clear that the

plaintiff cannot legally contend that he is in possession of the property and

claim a permanent prohibitory injunction decree, either as a substantive

relief or as a consequential relief, in view of the attainment of finality of the

judgment and decree in O.S.No.157 of 2003 and the counter claim therein.

Hence these questions are decided against the plaintiff (respondent).

       Question 3

       35.      Sri. Philip contended that there is no defect in the frame of the

suit. To dispel a cloud on the plaintiff's title, he had claimed a declaratory

relief and consequentially a prohibitory injunction relief too. According to

him, the defendant cannot claim that he has title and possession over the

property by virtue of Ext.B2 document. Sri. Philip argued that Ext.A3 gift



deed has come into effect and the gift was accepted by the donee during

the life time of the donor. The recitals in the document would show that the

donee (Indira) was put in possession of the property. In all respects, the

gift had been completed and therefore, Indira became the absolute owner

of the property. Having stated so, deceased Lakshmi (donor) could have

had no right to create any document with respect to the property covered

by Ext.A3. On a perusal of Ext.A3, it is evident that the recitals

unequivocally declare an intention on the part of the donor to gift the

property to the donee and it has been specifically recited that possession

had been handed over. It is well settled that if the recitals in a document

clearly establish a concluded gift, it can only be presumed that the gift has

been accepted and possession has been delivered to the donee. If that be

so, there is every legal reason for the plaintiff to claim that Indira had

become the owner of the property by virtue of Ext.A3 and through Ext.A4,

he got right over the property. Yet another aspect to be mentioned here is

that if Lakshmi had no subsisting right on the property after execution of

Ext.A3, the cancellation deed Ext.B11 and the assignment deed in favour

of Madhusoodanan (Ext.B1) cannot have any legal effect and they may not

bind the property.     A concluded gift cannot be cancelled merely by

executing another document. This proposition is unchallengeable. If the

assignor in Ext.B1 derived no right, naturally the assignee will get nothing.

Viewing from this angle, the case of the plaintiff is meritorious. In other



words, it cannot be said that the defendant, without assailing Exts.A3 and

A4 in appropriate proceedings, cannot sit idle by contending that Ext.A3 is

a sham document. The courts below rightly found that Ext.A3 gift deed

was validly executed by Lakshmi in favour of Indira and it had taken effect.

So much so, validity of the assignment deeds Exts.B1 and B2 should have

been scrutinized by a competent court in an appropriate legal action. I

endorse the findings of the courts below on facts that Indira had derived

title to the property in dispute by virtue of Ext.A3 gift deed. However, the

question here is whether the plaintiff can succeed in this suit because of

the legal hurdles faced by him? I have already seen that the plaintiff

cannot claim to be in possession of the property because of the bar of res

judicata and that under Order IX Rule 9 of the Code. The legal principle in

Section 37(2) of the Specific Relief Act also operates against the plaintiff

from raising such a contention. Then the question is whether he can

maintain a suit without a prayer for recovery of possession on the strength

of title? In this context, two further questions may arise.

        36.     Firstly, if the prayer for prohibitory injunction is legally

incompetent, can a suit for declaration simplicitor be maintained?

Secondly, is        a suit, without a prayer for recovery of possession,

maintainable in the light of the adverse finding in O.S.No.157 of 2003 that

the plaintiff's assignor was not in possession of the property? These two

questions can be considered together.



       37.       Sri.Philip, relying on the decision in S.P.Chengalvaraya Naidu

v. Jagannath ((1994) 1 SCC 1), contended that a judgment or decree

obtained by fraud should be treated as nullity and it can be questioned

even in a collateral proceedings.           The Supreme Court, in the above

decision, held as follows:

                      "The principle of "finality of litigation" cannot

               be pressed to the extent of such an absurdity that it

               becomes an engine of fraud in the hands of

               dishonest litigants. The courts of law are meant for

               imparting justice between the parties.         One who

               comes to the court, must come with clean hands. A

               person, who's case is based on falsehood, has no

               right to approach the court. He can be summarily

               thrown out at any stage of the litigation. A judgment

               or decree obtained by playing fraud on the court is a

               nullity and non est in the eyes of law.          Such a

               judgment/decree - by the first court or by the highest

               court - has to be treated as a nullity by every court,

               whether superior or inferior. It can be challenged in

               any court even in collateral proceedings."

The question to be decided here is whether the above said principle can be

applied to the facts? I have scanned through the averments in the suit.

Nowhere in the plaint any specific fraud is set up. There is no case that

either Madhusoodanan or defendant in this case had committed any fraud

on Lakshmi or Indira or the plaintiff. There is absolutely no averment in the



plaint that the decree in O.S.No.157 of 2003 was obtained by committing

fraud on the court. Order VI Rule 4 of the Code makes it clear that in all

cases in which a party relies on any contention of misrepresentation, fraud,

breach of trust, etc., particulars with dates and items, if necessary, shall be

stated in the pleadings. It is well settled that the allegation of fraud, undue

influence, etc. must be set forth in full particulars. There is absolutely no

plea in the plaint to hold that the decree in O.S.No.157 of 2003 and that in

the counter claim therein were obtained by committing fraud on the court.

Therefore, the principle in S.P.Chengalvaraya Naidu's case has no

application to this case.

       38.      Admittedly both the parties in O.S.No.157 of 2003 assigned

their respective rights over the disputed property in favour of the present

plaintiff and defendant pending the suit. Therefore, none of the parties has

any legal or moral right to accuse the other for committing any fraud in that

regard. Sri.Philip, relying on the decision in Maria Margarida Sequeira

Fernandes v. Erasmo Jack De Sequeira ((2012) 5 SCC 370), contended

that possession is an incidence of ownership and can be transferred by the

owner of an immovable property to another. It becomes important when

there are no title documents and other relevant records before the court.

But, once the documents and records of title come before the court, it is the

title which has to be looked at first and due weightage be given to it. It is

also contended that possession cannot be considered in vacuum. The



Supreme Court was considering the nature of possession exercised by a

care taker. The facts and circumstances in Maria Margarida Sequeira

Fernandes 's case have no application to the facts in this case. Not only

that, the position emerging from the factual and legal setting in this case is

that the plaintiff is precluded from claiming possession over the property for

the reasons mentioned above. Therefore, even if he has title over the

property, contention that he is in possession cannot be entertained.

       39.      Sri.P.B.Krishnan contended that prayer in the suit is to pass a

decree declaring that the plaintiff is the absolute owner of the plaint

schedule property. The consequential relief claimed is for a permanent

prohibitory injunction decree restraining the defendant and his men from

interfering with the plaintiff's peaceful possession and enjoyment of the

plaint schedule property. According to Sri P.B.Krishnan, the consequential

relief is legally not allowable for the reasons of res judicata, bar under

Order IX Rule 9 of the Code and by operation of Section 37(2) of the

Specific Relief Act. Therefore, the suit has to be considered as one without

any consequential relief. If that be so, the prohibition under the proviso to

Section 34 of the Specific Relief Act will come into play.             When a

consequential relief ought to have been sought for in a suit for declaration,

it becomes not maintainable for want of a proper consequential relief. If a

consequential relief claimed in the plaint cannot be allowed on legal

grounds, the suit can only be treated as one without claiming any further


relief. This is a glaring infirmity in the plaintiff's case.

        40.     Another legal issue raised by the defendant is that the suit

ought to have been one for declaration and recovery of possession on the

strength of title. The question of limitation in filing a suit for declaration and

prohibitory injunction shall be considered in the succeeding paragraphs.

Insofar as a suit for declaration and recovery of possession on the strength

of title is concerned, the provision applicable under the Limitation Act, 1963

is Article 65.

        41.     As mentioned above, it has been found that a suit for

declaration and consequential prohibitory injunction relief is not

maintainable in view of the decision in O.S.No.157 of 2003. As there is no

prayer for recovery of possession on the strength of title, it can only be

presumed that the suit is without any consequential relief. Such a suit is hit

by the proviso to Section 34 of the Specific Relief Act. No doubt, there

should have been a prayer for recovery of possession on the strength of

title for the reason that prayer for permanent prohibitory injunction is barred

by the aforementioned legal principles attracted on account of the finality of

the decree in O.S.No.157 of 2003. Therefore, the suit, in the form in which

it is brought, is legally not sustainable. I hold that in the absence of a

prayer for recovery of possession, the suit as framed is barred.

        Question 4

        42.     As seen in the above paragraphs, the suit framed for



declaration without a prayer for recovery of possession is not maintainable.

The trial court in its judgment has found that the plaintiff in O.S.No.157 of

2003 has preferred an application to implead the present plaintiff as the 2nd

plaintiff therein. It would go to show further that she was aware of the

nature of dispute subsisting between herself and Madhusoodanan and also

the existence of Exts.B1 and B11. It was also found by the courts below

that execution of Exts.B1, B2 and B11 was known to the plaintiff and his

predecessor-in-title at the appropriate time. O.S.No.157 of 2003 was

dismissed and the counter claim was decreed on 08.02.2008. Much before

that, the plaintiff was aware of Ext.B1 dated 15.11.2002 and Ext.B2 dated

02.07.2005. He obtained the right as per Ext.A4 dated 02.08.2005. As

observed by the courts below, the factum of execution of the objectionable

documents was known to the plaintiff three years before the institution of

the suit. Going by Article 58 of the Limitation Act, to obtain any declaration

other than those referred to in Articles 56 and 57, a suit should be filed

within three years when the right to sue first accrued. It is clear that the

present suit filed on 21.05.2010 is barred by limitation. Therefore, this

question is decided against the plaintiff.

       Question 5

       43.      Learned counsel Sri.P.B.Krishnan, relying on Section 7(5) of

the Kerala Education Act, contended that property of an aided school will

be deemed to be in the possession and control of the manager. As



mentioned above, by virtue of the orders passed by this Court, the

defendant is functioning as manager.         He, therefore, argued that the

plaintiff is not entitled to get any prohibitory injunction as prayed for

because it will conflict with the above mentioned provision in the Kerala

Education Act. This contention cannot be accepted for more than one

reason. The defendant functions as manager only on the basis of orders of

this Court and it can be regarded only as a transitory arrangement. It had

been made clear by this Court that the claim of managership raised by the

contesting parties would directly depend on the outcome of a properly

instituted suit. The defendant cannot claim that he is the manager of the

school by any independent authority. Secondly, in this suit, the defendant

cannot get his right to manage the school established because his remedy

lies in an appropriate action. What is to be decided in the suit, according to

its form and substance, is the right of the plaintiff to get the declaratory and

injunction decrees prayed for. Therefore, this question is decided against

the defendant.

       Question 6

       44.      Another strong contention raised by the defendant is that the

suit is bad for non-joinder of necessary parties. As rightly understood by

the courts below, a necessary party is a party without whom an effective

decree cannot be passed in a suit. In this case, the defendant has raised a

specific plea in the written statement that the Trust is a necessary party to



the suit. According to the defendant, he has no personal interest over the

property. Ext.B2 is an assignment deed executed by Madhusoodanan in

favour of the Trust. In the document, the registration number and address

of the Trust were specifically shown. Recitals in the assignment deed

would show that the sale was not for any individual benefit of the

defendant, but it was intended to benefit the Trust. From the cause title

shown to the plaint, it can be seen that the defendant is impleaded in his

personal capacity. In spite of raising a specific contention of non-joinder of

necessary parties, the plaintiff failed to implead the Trust, which could only

be treated as a necessary party, as Ext.B2 is in favour of the Trust. The

decree in the suit will certainly affect the interests of the Trust. Therefore,

the reasoning stated by the trial court and the lower appellate court for

rejecting this contention of the defendant is legally unsustainable. Hence

this question is decided against the plaintiff.

       45.      In denouement, it can be stated that the judgment and decree

in O.S.No.157 of 2003 and those in the counter claim preclude the plaintiff

from asserting his possession over the property. Prayer in the suit for

prohibitory injunction is not maintainable by virtue of res judicata, bar under

Order IX Rule 9 of the Code and operation of Section 37(2) of the Specific

Relief Act. If that be so, the suit for declaration could be regarded only as

one without seeking a consequential relief, which naturally flows from the

substantive relief. In the absence of a prayer for recovery of possession of


the property on the strength of title, the plaintiff cannot maintain a suit for

declaration simplicitor. The suit is bad for non-joinder of necessary parties.

From the facts proved, it is seen that the suit should have been instituted

within three years from the date when the right to sue first accrued.

Therefore, the suit is barred by limitation. It is made clear that this Court

has not made any pronouncement touching the correctness or legality of

Exts.B1 and B2 in favour of the defendant. Vexed question regarding the

right of management of the school cannot be decided in this suit in the

absence of the authorities concerned in the party array and also reckoning

nature of the pleadings and reliefs claimed.

                In the result, the appeal is allowed. The concurrent findings in

O.S.No.243 of 2010 before the Court of Munsiff, Taliparamba and in

A.S.No.74 of 2015 before the Court of Subordinate Judge, Payyannur are

hereby set aside. The suit is dismissed. The parties are directed to suffer

their respective costs.

                All pending interlocutory applications will stand closed.




                                                 A. HARIPRASAD, JUDGE.



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