NANOO GOPALAN Vs. AYYAPPAN SANKU

JUDGEMENT

(1.) The 5th defendant is the appellant. The plaintiff's suit is for recovery of the plaint property on the strength of title. According to them, the first defendant had been permitted to put up a building in the property and to reside in the property. The first defendant and the members of his family are stated to be residing in the plaint property under such a permissive right. To evict these defendants from the property and to recover possession of the same with arrears and future rent, the plaintiff's predecessor in interest had instituted a suit in the year 1106 in the Ernakulam Munsiff's Court as O.S. No. 229. Even though the rent arrangement pleaded in that suit was found to be false and the claim for rent was disallowed, the plaintiff was given a decree for recovery of possession of the property on payment of the value of the improvements in the property which were found to belong to the defendants. The Trial Court's decree to that effect was passed on 19.3.1107 and it was confirmed by the appellate court, subject to a slight modification in the value of improvements. The appellate court decree was passed on 29.12.1109. The value of improvements awarded under that decree was Rs. 536-11-1. The plaintiff did not execute that decree, but allowed it to become time barred. The present suit was instituted on 29.12.1121. After setting up the plaintiff's title to the property, it was alleged in the plaint that the defendants forcibly took possession of five cocoanut trees in the property which were in the possession and enjoyment of the plaintiff's family at the time of the earlier suit. By way of income from these trees, the plaintiffs claimed Rs. 7-8-0 per year. Over and above this amount, a sum of Rs. 3/- per year was also claimed towards charges for use and occupation of the site by the defendants. The amount paid by the plaintiffs by way of michavaram to the Tripoonithura Devaswom which is the ultimate jenmi of the property, was also claimed by the plaintiffs. These amounts were sought to be set off against the value of improvements admitted to be due to the defendants.

(2.) Defendants 4 and 5 contested the suit. They denied the premissive arrangement pleaded by the plaintiffs and contended that the present suit is barred by res judicata by reason of the decision in the earlier suit, O.S. No. 229 of 1106. A plea of limitation was also raised by them. The Trial Court repelled all these contentions and passed a decree in favour of the plaintiffs for recovery of possession of the property from the defendants on payment of Rs. 538-11-1, as value of their improvements in the property. The allegation that the defendants took forcible possession of five coconut trees, was found against the plaintiffs and the claim for the income of those trees was disallowed. The claim for the charges for use and occupation of the property was fixed at Rs. 1-8-0 per year. That decree was confirmed by the lower appellate court. Hence this Second Appeal.

(3.) The two points urged on behalf of the appellant are (1) that the suit is barred by limitation and (2) that it is barred by res judicata by reason of the decision in the earlier suit O.S. 229 of 1106. We think that the appellant is entitled to succeed on both these points.