RAMACHANDRAN NAIR Vs. SUKUMARAN NAIR

JUDGEMENT

(1.) This is an appeal by the defendant in a suit for recovery of possession on the strength of title. The plaint schedule property belonged to the mother of plaintiff and defendant. It was settled in favour of the plaintiff as per document No. 2509 dated 18.7.1977 executed by the mother. The document had reserved the right of the mother to reside in the building till her death and to take income from the property. The mother died on 2.8.1997. According to the plaintiff, though the mother subsequently cancelled the settlement deed, the cancellation was found to be invalid as per the decree in O.S. No. 509 of 1986 filed by the plaintiff against the mother and the defendant. After the death of the mother, the plaintiff demanded the defendant to vacate the building. Since he refused to do so, the suit was filed. The defendant filed a written statement contending that the plaintiff had not prayed for vacating the building in O.S. No. 509 of 1986 and the settlement deed No. 2509/77 had not come into effect as the same was subsequently cancelled. The plaintiff has not derived any title under the settlement deed. It was also contended that the title if any of the plaintiff was barred by adverse possession and limitation.

(2.) The Trial Court found that the contention of the defendant based on O.2 R.2 of the Code of Civil Procedure on the ground that the plaintiff had not claimed recovery of possession in the earlier suit cannot be sustained as the mother had reserved her right to reside in the building and to take usufructs and therefore the plaintiff could not have prayed for recovery of possession in that suit. The Trial Court found that the earlier settlement deed had come into effect as the plaintiff had effected mutation and remitted tax as evidenced by Exts. A2 and A7 and building tax as evidenced by Exts. A3 and A6. The title of the plaintiff was declared in Ext. A5 suit. The evidence of PWs. 1 and 2 were relied on by the Trial Court. Admittedly, the judgment in Ext. A5 has become final. The present defendant remained ex parte in that suit.

(3.) The case of adverse possession and limitation was also found to be unsustainable as the defendant had not adduced any evidence to show that he kept possession of the property adverse to the interest of the plaintiff. In fact the only document by him was the ration card and voters list. The lower appellate court has confirmed the findings of the Trial Court.