KUNJAN NAIR SIVARAMAN NAIR Vs. NARAYANAN NAIR

JUDGEMENT

(1.) Leave granted.

(2.) Appellant questions correctness of judgment rendered by learned single Judge of the Kerala High Court which dismissed the Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short the Code). The appellant was defendant No. 1 in the suit for recovery of possession on the strength of title, instituted by persons as plaintiff seeking recovery of possession. There were two defendants originally. As the first defendant died during the pendency of the first appeal before the Principal Sub Judge, Kottayam, his legal heirs were impleaded as respondents 9 to 13.

(3.) Case of the plaintiffs in nutshell was that the plaint schedule property originally belonged to their deceased father Narayanan Nair and his mother Kunjupennnamma on the basis of a partition. On the death of mother, her right also devolved on Narayanan Nair who died on August, 1975. The suit was filed in Munsiffs Court, Palai on the ground that the plaintiffs are only legal heirs and hence they had title over the plaint schedule property. Defendant No. 1 filed an application before the Land Tribunal, Palai to purchase the jenmam right claiming to be cultivating tenant. The same was dismissed. An appeal against the said order was also dismissed. The plaintiffs had earlier filed OS 208/77 seeking a decree for declaration of right and title to the plaint schedule property and their possession. Though their title was upheld but prayer for injunction was rejected as possession was not found. Appeal against the judgment in question did not bring any relief. Subsequently, the suit to which the present dispute relates was filed claiming recovery of possession with mesne profits. The appellant resisted the suit saying that he was a co-owner, as Narayanan Nair was his uncle. Both Narayanan Nair and his mother were looking after him and after the partition which took place when he was very young. Narayanan Nair gave the plaint schedule property to him and since then he was in possession and in enjoyment of the property. Though the application before the Land Tribunal and the appeal were dismissed, the rights obtained from Narayanan Nair and his mother remained unaffected. Even if title of the plaintiffs has been found in the earlier suit that was no longer in operation. It was further stated that his son is residing in the property by constructing a building and effecting improvements and, therefore he is entitled to get value of the building and the improvements. Reference was made to the Kerala Compensation for Tenants Improvements Act, 1958 (in shot "the Compensation Act"). It was pointed out that the suit was barred in terms of Order II, Rule 2 of the Code. The trial Court framed 3 issues revolving round the question regarding applicability of Order II, Rule 2 of the Code, and entitlement for the improvements claimed to have been made. The Courts below had found that the first suit was one for mere title and injunction and the cause of action was not the same as that of the later suit; therefore, Order II, Rule 2 of the Code had no application. Similarly, it was held that the provisions of Compensation Act had no application to the facts of the case as there was no material regarding any improvement. In any event, the appellant was not a tenant as defined under the Compensation Act.