KANNU PILLAI Vs. BHASKARA MENON

JUDGEMENT

(1.) The plaintiff in O.S. No. 73/1120 of the District Munsiffs Court of Cochin is the appellant in this case. The suit is for eviction and for arrears of rent on the basis of Ext. H lease deed dated 20.6.1111 executed by the 1st defendant in favour of one Valiaveetil Velayudhan Pillai and for damages for waste alleged to have been committed in the property. The plaint property belonged to Velayudhan Pillai, his brothers Sankara Pillai, Kunjan Pillai, Unni Pillai and Appu Pillai and his deceased brothers son Ramakrishna Pillai. The plaintiff acquired the rights of Ramakrishna Pillai and Unni Pillai under Ext. A dated 15.9.1109 and Ext. E dated 20.5.1119. The suit was filed on behalf of all the coowners. The 2nd defendant is the father of the 1st defendant and he is alleged to be in possession of the property. Defendants 3, 4, 12 and 13 are alleged to be kudikidappukars in the property under the 1st defendant. The rights of Velayudhan Pillai, Sankara Pillai and Appu Pillai have devolved on defendants 5, 6 and 7. Defendants 8 to 11 have together acquired the rights of Kunjan Pillai.

(2.) Defendants 1, 2, 4, 6, 8 to 11 and 12 contested the suit. The 1st defendant contended that the assignments in favour of the plaintiff were benami, that the suit is not maintainable, that the arrears claimed in the plaint are not due and that he has committed no waste in the property. The 2nd defendant contended that he was not a necessary party to the suit and that he should be given his costs. The 4th defendant contended that he had no right in the property and that he was unnecessarily impleaded in the suit. Defendants 6 and 8 to 11 contended that the suit was not maintainable and that they were opposed to the plaintiff recovering possession of the property on their behalf. The 12th defendant contended that the house in which he was living had been put up prior to the date of the lease deed and that he was entitled to the value thereof. The Trial Court dismissed the suit with costs on the ground that it is not maintainable. The appeal filed by the plaintiff was also dismissed. Hence this second appeal.

(3.) With regard to the first point, the plaint property admittedly belonged to Velayudhan Pillai, his four brothers and the son of a deceased brother. The property was originally outstanding on lease under Ext. G lease deed dated 28.6.1099 executed by one Meethain Marakkaru in favour of Velayudhan Pillai. A suit for partition of the plaint property and other properties was filed by some of the coowners in 1104 as O.S. 140/1104 of the Cochin Munsiffs Court. That suit was at first dismissed by the Trial Court. But in appeal the decision was reversed by the then Cochin Chief Court and a decree was given for partition. The decision of the Chief Court is reported in 25 Cochin 27. After the appellate decree in the partition suit the right under Ext. G was released in favour of Velayudhan Pillai by the assignee of the leasehold right under Ext. F executed on 12.6.1111 and registered on 19.6.1111. On 20.6.1111 Velayudhan Pillai leased the property to the 1st defendant under Ext. H. There was a pidipathu of Rs. 75. The annual rent fixed was Rs. 80-2-0. A sum of Rs. 12-2-4 was to be paid to the municipality as tax for a building in the property. Out of the balance amount a sum of Rs. 15-10-2 was to be paid to Velayudhan Pillai inclusive of puravaka and Rs. 52-5-6 to be paid to the 5 other coowners in equal proportion. It will thus be seen that Ext. H was executed in favour of Velayudhan Pillai for and on behalf of all the coowners.