SADANANDAN Vs. BHASKARAN

JUDGEMENT

(1.) The defendant in O.S. No. 489 of 1977 of the Principal Munsiff Court, Kozhikode II, is the appellant. The appeal is directed against the judgment and decree dated 11.8.1995 in A.S. No. 74 of 1989. Suit was filed for recovery of possession on the strength of plaintiff's title and also for consequential injunction. The trial court held that Ext.B1 is a validly executed will, that the defendant has discharged the burden of proving the will and that the plaintiff therefore has no right over the plaint schedule properties. The trial court dismissed the suit. The lower appellate court reversed the findings of the trial court and passed a decree as prayed for in the plaint. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit.

(2.) The plaint schedule properties belong to Sri. Kandar. Plaintiff is the mother of Kandar. Kandar died on 13.10.1977 The plaintiff's case is that after the death of Kandar being the sole legal heir, plaint schedule properties devolved upon her. It is alleged in the plaint that the defendant had trespassed into the house and started residing in the house with his wife and children, that the defendant has no right in the property and therefore the plaintiff is entitled to recover possession of plaint B schedule property and also for perpetual injunction restraining him from trespassing into plaint A schedule property.

(3.) In the written statement, the defendant inter alia contented that the plaintiff has never obtained any right in plaint A schedule properties, that Kandar has executed a will with respect to the plaint schedule properties on 15.7.1977, that the plaint schedule properties were bequeathed to the defendant by the deceased Kandar and thus the defendant has obtained right over the plaint schedule properties on the death of Kandar. The defendant also denied the averment in the plaint that the plaintiff has been in possession and enjoyment of the plaint schedule properties. It is also pleaded that the plaintiff, for the last 15 years before the death of Kandar, has been residing with her daughter. The defendant also denied the averment that he has trespassed into plaint B schedule properties. It is further stated that the plaintiff has filed a complaint before the police and influencing the police she had made the defendant to hand over the documents with respect to the properties to the plaintiff.