Shorn off unnecessary details, the suit was essentially one for injunction seeking to restrain the defendants from making use of the grave-yard which according to the plaintiff was set apart to his family by partition deed of the year 1880. The definite contention was that the first defendant is not a member of Puthiyapurayil family and he was not entitled to use the graveyard and therefore the first defendant has no right to enter into the property.
2. The main contention of the first defendant who resisted the suit is that he was very much a member of Puthiyapurayil family who entered into Ext.A1 partition deed and he is entitled to use the graveyard. He also relied on an earlier judgment in O.S.No.153/1993 which according to him gives a quietus to the issue involved in this suit. In that suit also, the issue related to the use of the graveyard and it went in favour of the first defendant.
3. On the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A12 from the side of the plaintiff. The contesting defendants had DWs 1 and 2 examined and had Exts. B1 to B37 marked. Exts. C1 to C4 are the Commissioners reports and plan.
4. On an appreciation of the evidence in the case, the trial court came to the conclusion that the claim put forward by the plaintiff that the first defendant does not belong to the Puthiyapurayil family, cannot be accepted for the reasons more than one. According to the trial court, apart from the fact that several documents have been produced by the first defendant to substantiate the contention that he belongs to the said family, there is also the judgment in O.S.No.153/1993 which has categorically determined the status and also with regard to the use of the graveyard. The trial court held that the suit is barred by principle of resjudicata and the suit was dismissed.
5. The matter was carried in appeal. The appellate court after elaborate independent evaluation of the evidence on record, found no reasons to interfere with the ultimate conclusion drawn by the trial court though for additional reasons given by the appellate court and dismissed the appeal.
6. The learned counsel for the appellant complained that both the courts below were not justified in holding that the suit is barred by principle of resjudicata, especially, when pleadings in the earlier case had not been produced by the person concerned nor was there an issue in that regard. It is also contended that Ext.A8, a document which is said to be a receipt executed by the first defendant in favour of a stranger was not considered in the proper perspective and that has caused considerable prejudice to the appellant. Further it is contended that though the graveyard was shown to have an extent of 6.5 cents, the Commissioner who visited the property has shown the extent of only 4.5 cents. The learned counsel went on to point out that the burden was on the first defendant to show that he is the member of Puthiyapurayil family, in the light of the definite stand taken by the plaintiff that he has nothing to do with the family. The evidence adduced by him is not sufficient to establish the said fact. If the question of resjudicata is eschewed, then there is absolutely no evidence to show that the first defendant belonged to the same family. These vital aspects have been omitted to be noticed by the courts below and that has resulted in a wrong decree being passed.
7. After having heard the learned counsel at length and after having perused the available records before this Court, it is found that there is no substance in any of the contentions raised by the learned counsel for the appellant. True, as far as the question of resjudicata is concerned based on which the trial court dismissed the suit, it appears that the pleadings in the earlier case had not been produced nor was there any issue before the trial court. The learned counsel for the appellant pointed out that initially an issue was raised and later it was deleted. But to the surprise of the appellant, it was re-agitated before the court by raising an additional issue.
8. It cannot be disputed that the plaintiff was put on notice regarding the claim of resjudicata by the defendant and he had proceeded in the trial based on that plea of the defendant. It cannot therefore be said that he is taken by surprise by the contention regarding resjudicata barring his present suit. Of course, proper course that could have been adopted was to raise an issue and also to insist for the production of pleadings in the former suit since resjudicata is a rule of evidence. But as already noticed, since the plaintiff was aware of the contentions that was being put forward by the first defendant and he had contested the said suit on that basis, it could not be said that he has been prejudiced.
9. Apart from the above fact, even assuming that the plea of resjudicata is not taken aid of, both the courts below have found there are ample and sufficient materials to come to the conclusion that the first defendant is the member of Puthiyapurayil family. It is unnecessary to traverse the entire evidence of the defendants since that exercise has been undertaken by the both the courts below. Suffice to say that lower appellate court has observed that even after DW1 had in his chief examination specifically stated that he is the member of Puthiyapurayil family, there was no challenge to his said statement in the cross examination. Both the courts below have found that he had produced a number of documents to show that he is the member of Puthiyapurayil family. Both the courts below have discussed the evidence in considerable detail and were convinced that the documents produced by the defendants were sufficient to show that he is the member of Puthiyapurayil family.
10. As far as Ext.A8 is concerned, it can at best be treated only as an admission on the part of the defendant which might go against him. But there is nothing to show that he was confronted with the said documents when he is examined and his explanation was sought for. Under these circumstances, much significance cannot be given to Ext.A8 also.
11. The question that is essentially involved regarding the status of the first defendant as the member of Puthiyapurayil family. On evaluation of the evidence in the case, the courts below have found that the defendant has established his case. The finding thus arrived is essentially one on facts and since it is not shown that the findings are either perverse or contrary to the evidence on record, exercising the jurisdiction under Section 100 of C.P.C., interference by this Court is uncalled for.
This appeal is without merits and is accordingly dismissed in limine.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE