RSA No. 918/2018

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CR

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

MONDAY, THE 3

RD

DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946

RSA NO. 918 OF 2018

AGAINST THE JUDGMENT & DECREE DATED IN AS NO.38 OF 2016 OF DISTRICT

COURT, KASARAGOD ARISING OUT OF THE JUDGMENT&DECREE DATED 29.03.2016 IN OS

NO.219 OF 2012 OF PRINCIPAL MUNSIFF, KASARAGOD

APPELLANT/SUPPL.APPELLANT IN AS/LEGAL HEIR OF DEFENDANT IN OS:

USHA M.S, AGED 42 YEARS

D/O. LATE BALRAJ AND LATE B.M.RADHA, RESIDING AT KODANGE IN

KODIBAIL VILLAGE, NOW MANJESWAR TALUK, KASARGOD P.O,

UPPALA 671322.

BY ADVS.

R.LAKSHMI NARAYAN

SMT.R.RANJANIE

RESPONDENT/RESPONDENT IN AS/PLAINTIFF IN OS:

C.SADASHIVA ACHARYA

AGED 67 YEARS

S/O. ACHUTHA ACHARYA, HINDU, MECHANIC BY PROFESSION,

RESIDING AT CHIPPAR HOUSE IN PAIVALIKE VILLAGE, NOW

MANJESWAR TALUK, KASARGOD DISTRICT, P.O PAIVALIKE 671348

BY ADVS.

K.I.MAYANKUTTY MATHER

SMT.T.K.SREEKALA

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

03.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CR

JUDGMENT

1. Appellant is the legal heir of the defendant in the suit. The suit

was for recovery of possession of Plaint A scheduled property

on the strength of the title. As per the plaint allegations, Plaint A

schedule property originally belonged to one Sheik Ahmmed as

per Ext.A2 Assignment dated 25.11.1978; that the said Sheik

Ahmmed executed Ext.A1 Sale Deed dt. 12.02.1981 conveying

the plaint schedule property to the plaintiff; that the defendant

has 8 cents of land on the western side of the plaint A schedule

property; that the defendant constructed a house in a portion of

A schedule property; that the defendant shifted her residence to

the newly constructed house in Plaint A schedule property; and

that though the plaintiff demanded to surrender vacant

possession of the Plaint A Schedule property, the defendant

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refused to surrender the same to the plaintiff. Hence, the suit

was filed.

2. The defendant contested the suit by filing a Written Statement

and raising a counterclaim. The defendant contended inter alia

that the defendant is in exclusive possession of ‘X’ schedule

property described in the Written Statement as per document

No.4/1982 of SRO Manjeshwar; that there was a vacant land

extending 15 cents in front of the residential building of the

defendant belonging to the plaintiff; that the defendant

encroached into the said 15 cents of land and made

construction of residential house and the said portion of Plaint

A schedule property is shown as ‘Y’ schedule property; that the

defendant has been in possession and enjoyment of ‘Y’

schedule property for last more than 31 years openly and

peacefully and uninterruptedly to the knowledge of the plaintiff

and she has perfected title by adverse possession. On these

contentions, the defendants prayed for a declaration that she

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had perfected her title to the ‘Y’ schedule property by adverse

possession and limitation and for a consequential relief for a

permanent prohibitory injunction.

3. Neither the plaintiff nor the defendant adduced any oral

evidence. Exts.A1 to A3 and A4 Series were marked from the

side of the plaintiff, and Ext.B1 and B2 were marked from the

side of the defendant. The Commission Report and Plan are

marked as Ext.C1 and C2.

4. The Trial Court found that the plaintiff is entitled to the decree

for recovery of possession of the plaint A schedule property on

the strength of title. The Trial Court found that the defendant

failed to prove any right over the plaint A schedule property, and

hence, the Counter Claim is liable to be dismissed. On the said

findings, the suit was decreed directing the defendant to

surrender vacant possession of plaint A schedule property,

which is shown as B1and B2 plots in Ext.C2 Plan, to the plaintiff

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within two months, failing which the plaintiff is allowed to

execute the decree through the process of the court. The Trial

Court dismissed the counterclaim raised by the defendant.

5. The defendant filed A.S.No. 38/2016 before the First Appellate

Court challenging the judgment and decree in the suit. The

defendant did not file any appeal challenging the dismissal of

Counter Claim by the Trial Court.

6. The First Appellate Court found that the plaintiff failed to adduce

evidence to prove that he had come into actual possession of

plaint A schedule property as per Ext.A1 and that the suit claim

is unsustainable. But the First Appellate Court refused to allow

the appeal, finding that the failure of the appellant to file an

appeal against the dismissal of her Counter Claim stands in the

way to allow the appeal filed by her. The Appellate Court further

found that the defendant was permitted by the Trial Court to

appear through a guardian as per order dt 19.02.2013 in I. A

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No. 1862/2012 and thereafter the defendant was conducting the

case through her guardian. There was no application either by

the defendant or by her guardian for discharge and there was

no order of the Court discharging the guardian. But the appeal

was filed by the original defendant by herself and Vakalath was

executed by her for filing the appeal. The First Appellate Court

held that it is an omission on the part of the Court, and it will not

cause prejudice to the party as the guardian appointed for the

defendant was her own daughter, and the very same person

represents the estate of the defendant on her death pending the

appeal.

7. The present Appeal is filed challenging the judgment and

decree passed by the First Appellate Court confirming the

judgment and decree passed by the Trial Court in the suit.

8. This Court had issued notice before admission to the

respondent, and the respondent appeared through counsel. On

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the question of admission of the Second Appeal, I heard the

learned Senior Counsel Sri.R. Lakshmi Narayanan, instructed

by Adv. Smt.R.Ranjini and the learned Counsel for the

respondent, Smt.Nikitha Susan Paulson.

9.

The learned Senior Counsel for the appellant contended that in

view of the decision of this Court in Abdul Nazer v. Lakshmana

Das 2016 (3) KLT 450, there is no necessity for filing two

separate appeals before the First Appellate Court against the

decree in the suit and in the Counter Claim when the suit is

decreed, and Counter Claim is dismissed. Learned Senior

Counsel pointed out that it is specifically stated in the

Memorandum of Appeal filed in the First Appellate Court that

the appellant does not intend to file any appeal as against the

dismissal of the Counter Claim by the Trial Court. It is a settled

law that a party to the suit can withdraw the suit even during the

pendency of the appeal. The said statement in the

Memorandum of First Appeal is to be treated as withdrawal as

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a counterclaim by the defendant at the appellate stage. The

Learned Counsel raised another argument that when the First

Appellate Court found that the Appeal was incompetent, it

should have returned the appeal back to the party for proper

presentation rather than deciding the matter on merits. The filing

of the appeal by the defendant directly, without discharging the

guardian appointed by the Trial Court, is done by the counsel;

the defendant shall not be prejudiced on account of the mistake

committed by the counsel. On merits, the First Appellate Court

has found in favour of the defendant holding that the suit claim

is not maintainable. The First Appellate Court specifically found

that the plaintiff was relying on a paper transfer of land, and he

had never possessed the plaint schedule property. The

defendant claimed possession of only 15 cents out of the Plaint

A schedule property, but the Trial Court decreed the suit,

allowing recovery of the entire Plaint A schedule property from

the defendant. There is a specific condition in Ext.B1 dt,

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07.04.1977 that the property assigned therein shall not be

transferred within a period of ten years. The Assignee in Ext.B1

transferred the property in favour of the plaintiff as per Ext.A1 dt

12.02.1981. The said transfer is within ten years, and hence, the

said transfer is void. Ext.B2 Report of the Village Officer would

prove that the assignee violated the conditions of the

assignment. Hence, the Trial Court acted illegally in finding the

title of the plaintiff over plaint A schedule property. The learned

Senior Counsel concluded by submitting that there are

substantial questions of law in the matter requiring admission of

this Second Appeal.

10.

On the other hand, the learned Counsel for the

respondent/plaintiff contended that what is declared in the

decision in Abdul Nazer (supra) is that separate appeals are not

required for challenging the judgment in the suit and in the

counterclaim. But such an appeal should be one Composite

Appeal challenging the judgment and decree in the suit as well

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as the counterclaim by making payment of court fee for

challenging the judgment in the suit as well as in the

counterclaim. Learned Counsel relied on the decisions of this

court in Girija and others v. Rajan and another 2015(1) KL T

695 and Janardhanan Pillai and Others v. Ponnamma and

Others 2017(2) KLT 443 in support of her contentions.

Admittedly, the defendant has filed an Appeal before the First

Appellate Court challenging the judgment and decree passed in

the suit alone by making payment of court fee with respect to

the said challenge alone, and she did not make any challenge

against the judgment and decree in the Counter Claim and did

not pay any court fee with respect to the same. Ext.A1 is

perfectly valid and legal as Ext.B1 property was alienated after

three years provided in the Kerala Land Assignment Rules. The

period of 10 years mentioned in Ext.B1 is not relevant or

material in the light of the judgment of this Court in W.P(c)

No.17443/2017, holding there could not be any contra

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prescription against the provisions of the statute. As per Rule

8(1A) of the Kerala land assignment Rules, which existed as on

the date of Ext.A2, the restriction against alienation is only three

years, and the property was alienated much after the said period

of three years. She concluded by submitting that there is no

substantial question of law in the matter warranting admission

of this Second Appeal as the questions of law involved are well

settled.

11. I had considered the rival contentions.

12. It is well settled that when there are suit and counterclaim,

and both are disposed of by a single judgment, the aggrieved

party has to file an appeal against the decree in the suit and the

decree in the counterclaim either by filing a separate appeal or

by filing a composite appeal by making payment for court fee

with respect to both the challenges. As rightly pointed out by the

learned Counsel for the respondent, the defendant filed an

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appeal only against the decree in the suit. The defendant did

not challenge the decree dismissing the counterclaim. The court

fee is paid only with respect to the challenge against the decree

in the suit. Hence, the judgment and decree in the counterclaim,

which remained unchallenged by the defendant, would operate

as res-judicata against the challenge with respect to the

judgment and decree in the suit.

13. In Girija (supra), this Court considered two questions of law-

(1) Is a defendant who raised a counter-claim in the suit bound

to file two appeals if the suit was decreed after rejecting the

counter-claim? (2) Will that part of the judgment, disallowing the

counter-claim, operate as res-judicata insofar as the appeal filed

against the decree in the suit is concerned? This Court answered

both the questions of law against the appellant therein. It is useful

to extract Paragraph 4 of the said decision:

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“14. From the above discussion, it is discernible that the law stated in O.8

R.6A CPC makes it abundantly clear that the counter-claim in a suit will have

all the characteristics of a cross - suit including the vulnerability of suffering

the bar of res-judicata enshrined in S.11 CPC if not properly challenged.

Therefore, I find that the questions of law arising, in this case, can only be

decided against the appellants, finding that if a defendant who raised a

counter-claim in a suit fails both in the suit and in the counter -claim, will have

to file separate appeals challenging the decree in the suit and the

counterclaim. Since the appellants in this case failed to do so before the

lower Appellate Court, I am of the view that the first appeal itself was barred

by res judicata. Hence, the second appeal is not maintainable. In view of the

findings on the substantial questions of law, the appeal is only to be

dismissed.”

14. In the above decision, this Court found that separate appeals

are necessary and that if only one appeal is filed, the said

appeal is barred by the principle of res-judicata. The learned

Senior counsel for the appellant contended that the said

decision was overruled by the Division Bench of this Court in

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Abdul Nazer(supra). As rightly pointed out by the learned

Counsel for the respondent, what is overruled by the Division

Bench in Abdul Nazer(supra) is the finding in Girija(supra)

that separate appeals are to be filed challenging the decree in

suit and counterclaim when the appellant fails both in the

counterclaim and in the suit. It is useful to extract Paragraphs 9

and 10 of Abdul Nazer(supra) :

“8. It has been held in A. Z. Muhammed Farook v. State

Government, 1984 KHC 217: 1984 KLT 346: 1984 KLJ 145: ILR

1984 (1) Ker. 405: AIR 1984 Ker. 126 that the subject - matter

would be the aggregate of the amounts claimed in the plaint and

the counter-claim. The subject - matter of the suit and the

counterclaim has been separately valued, and the court - fee paid

thereon in the single memorandum of appeal. The subject - matter

in the suit and the counterclaim is one and the same in the instant

case, and there is no dispute as regards the forum to which the

appeal lies. We hold that the memorandum of Regular First Appeal

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filed impugning the composite decree in the suit and in the

counter-claim is properly constituted and maintainable.

9. The decision in Girija's case (supra) to the extent it holds that

separate appeals need to be filed challenging the decree in the suit

and in the counter - claim does not lay down the correct law. The

said decision militates against the scheme of the Statute and also

the dictum in Philip's case (supra) and is hereby overruled. We add

that this precise question was not answered in Mathew v. Rajan,

CDJ 2016 Ker HC 110 for the reason that such an issue did not

arise in that case as stated therein.

15. It is clear from the decision of the Division Bench in Abdul

Nazer(supra) that there should be a challenge against the

decrees in both the suit and the counterclaim by the defeated

party, and in case the challenge is confined to only one decree,

the said challenge is not maintainable on account of the

principles of res-judicata under S.11 CPC. In view of the said

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decision, only one appeal is sufficient to challenge the decree in

the suit and the decree in the counterclaim. But it shall be a

composite Appeal incorporating a challenge against both the

decrees with payment of court fees for both challenges. In the

decision of this Court in Janardhanan Pillai(supra), cited by

the Counsel for the respondent, this Court considered the effect

of nonpayment of court fee with respect to Counter Claim in a

Composite Appeal and found that when no court - fee was paid

on the appeal against the decree in the Counter Claim, the First

Appellate Court ought to have considered that there was no

appeal against the decree in the counterclaim and in such case,

the First Appellate Court ought to have considered that the

appeal against the dismissal of the suit was hit by the principles

of res-judicata on account of a want of appeal against the

decree in the counterclaim.

16.

In view of the aforesaid well-settled propositions of law, the

First Appellate Court rightly found that the appeal before it

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challenging the decree in the Suit is barred by res-judicata on

account of the nonchallenge against the decree in the

counterclaim.

17. The Appellant has filed the present appeal challenging

only the judgment and decree in the suit, which is confirmed by

the First Appellate Court. It is quite interesting to note that she

has paid court fees for the Suit Claim and the counterclaim in

this appeal. Such payments of court fees will be of no use in the

absence of any prayer with respect to the decree in the Counter

Claim. Even if such prayer is there, the Appeal could not be

treated as a composite appeal for want of challenge against the

decree in the Counter Claim before the First Appellate Court.

Only one decree of the First Appellate Court is available for

challenge in this Court, and hence, there could not be a

composite challenge.

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18. The contention of the learned Senior Counsel for the

appellant is that the statement in the Memorandum of Appeal

before the First Appellate Court that the appellant does not

intend to file any appeal against the dismissal of the

counterclaim by the Trial Court is to be treated as a withdrawal

of the Counter Claim and that hence there is no need to file an

appeal against the decree in the Counterclaim. Of course, it is

open to a party to withdraw the original proceeding during the

pendency of the appeal against the same. But here, the appeal

against the counterclaim was not pending before the First

Appellate Court, enabling the appellant to withdraw the

counterclaim. Hence, the said contention is unsustainable.

19. The next contention of the Senior Counsel is that the

Appeal before the First Appellate Court was filed by the

defendant directly without discharging the guardian appointed

by the Trial Court. This contention would make the position of

the appellant worse. True, the appeal ought to have been filed

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either by the guardian representing the appellant or the

defendant directly after seeking the discharge of the guardian.

If such contention is accepted, this Court will have to hold that

the appeal by the appellant is an incompetent one. Such

contention will not in any way help the appellant to overcome

the above bar on the principle of res-judicata. The appellant

could not contend that a mistake was committed by the First

Appellate Court in not returning the appeal for proper

presentation and that a mistake was committed by the counsel

in filing an improper appeal since on the death of the defendant

during the pendency of the first appeal, her daughter who is the

appellant herein and who was the guardian for the defendant

appointed by the Trial Court got herself impleaded as the legal

heir of the defendant and prosecuted the appeal. She had no

case before the First Appellate Court that the appeal was

incompetent and was liable to be returned.

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20. I find that the appeal filed by the defendant before the First

Appellate Court was not maintainable, and the First Appellate

Court rightly dismissed the same on the principles of res-

judicata.

21. The counsel on both sides advanced arguments with

respect to the legality of alienation of Ext.B1 property as per

Ext.A1 Sale Deed before the 10 years; I am not going into the

said question on merits as the same is not open for

consideration and the decision on the said question in either

way would not make any difference in the fate of this appeal.

22. I do not find any ground or reason to interfere with the

judgment and decree passed by the First Appellate Court.

Though questions of law are involved in the matter, the same

are not substantial in nature and are answered in the light of the

precedents laid down by this Court in the aforesaid decisions.

The second Appeal is not liable to be admitted when the

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substantial questions of law involved therein are settled

questions of law. No substantial question of law arises in this

appeal warranting admission of the Second Appeal.

Accordingly, this Regular Second Appeal is dismissed.

Sd/-

M.A.ABDUL HAKHIM

JUDGE

jma