Sunday 28 January 2018

Whether suit filed by assignee of plaintiff whose suit is dismissed is maintainable on same cause of action?

 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 (MANU/SC/0231/1964 : 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 (MANU/SC/0479/1980 : (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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 855 of 2016 (B)

Decided On: 06.01.2017

E.N. Chandran Vs. Valsan Matathil

Hon'ble Judges/Coram:
A. Hariprasad, J.



1. 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 ex-parte. 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-à-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 case 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 ex-parte 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 (MANU/SC/3416/2007 : 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 (MANU/SC/0231/1964 : 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 (MANU/SC/0479/1980 : (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 (MANU/KE/0067/1997 : 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 res-judicata from so doing since res-judicata 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 (MANU/KE/0657/2014 : 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 (MANU/SC/0192/1994 : (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 (MANU/SC/0225/2012 : (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.



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