KOCHUKUTTAN, S/O. VADAKKOOT KUNJANDI, AGRICULTURIST, AGED 61 YEARS, RESIDING AT KOORKENCHERY VILLAGE AND DESOM, THRISSUR, TALUK Vs. DAVIS, S/O. MUTTICHOOKKARAN JOSE, AGED 42 YEARS, BUSINESS PANAMKUTTICHIRA, ANGADI EDAKKUNNI VILLAGE, THRISSUR TALUK,

JUDGEMENT

(1.) THE Second Appeal arises from the judgment and decree of learned District Judge, Thrissur in A.S. No. 261 of 1998 reversing the judgment and decree of the learned Sub Judge, Thrissur in O.S. No. 871 of 1987. Appellant filed the suit for a declaration that as per proceedings in S.M.P. Nos. 1880 of 1976 and 6 of 1980 and A.A. Nos. 554 and 555 of 1980 of the Land Reforms (Appellate Authority), appellant is the owner of the suit property, that the judgment and decree in O.S. No. 483 of 1975 and A.S. No. 74 of 1979 are not binding on the appellant and for recovery of possession in case the respondents are found to be in possession of the suit property. The trial court granted a decree in favour of the appellant but only to be reversed by the first appellate court.

(2.) THE property described in the plaint schedule is 51.50 cents which forms part of a total of 1.17 Acres. Appellant claimed that the said property belonged to Tirumalai Swamy Gowndar and Myil Swamy Gowndar who had verumpattom right over the said property. While so, there was an oral agreement for sale of that verumpattom right in favour of the appellant. Tirumalai Swamy Gowndar and Myil Swami Gowndar agreed to sell the verumpattom right to the appellant for a consideration of Rs. 15,000/ - . For payment of the said amount, appellant collected Rs. 7,500/ - from the 2nd respondent. Tirumalai Swamy Gowndar and Myil Swami Gowndar executed Ext. B3, assignment deed dated 27.05.1974 in favour of the 3rd respondent (wife of the 2nd respondent) regarding the 50 cents as security for repayment of the sum of Rs. 7,500/ - appellant had collected from the 2nd respondent. It is further stated that appellant collected Rs. 3,000/ - from the 3rd respondent for payment of the sale consideration to Tirumalai Swamy Gowndar and Myil Swamy Gowndar and as security for repayment of that amount, Tirumalai Swamy Gowndar and Myil Swamy Gowndar executed Ext. B6, assignment deed dated 20.02.1975 in favour of the 2nd respondent regarding the 15 cents. Appellant claimed that in the meantime, as per order in S.M.P. No. 1880 of 1976 appellant was issued Ext. A1, purchase certificate concerning the 65 cents. The 1st respondent challenged the assignment order leading to Ext. A1, purchase certificate, in A.A. No. 555 of 1980 but that appeal was dismissed as time barred. By virtue of Exts. B3 and B6, the 1st respondent initiated S.M.P. No. 6 of 1980 before the Land Tribunal (for short, "the Tribunal") for purchase of landlord's right. That application was dismissed in view of the order on S.M.P. No. 1880 of 1976. Challenging that order, the 1st respondent filed A.A. No. 554 of 1980 which also ended in dismissal (since the Tribunal had by then passed order on S.M.P. No. 1880 of 1976 and issued Ext. A1, purchase certificate to the appellant). Appellant claimed that Exts. B3 and B6, assignment deeds in favour of the 3rd and 2nd respondents, respectively are void as the amounts borrowed were later repaid and he is in exclusive possession of the property. In case respondents disputed possession, appellant prayed for recovery of possession.

(3.) THE trial court based on Ext. A1, purchase certificate declared the appellant as title holder of the suit property. The trial court was of the view that the 1st respondent has not claimed tenancy right over the suit property and there was no request to refer the question to the Tribunal. The trial court, acting upon Ext. A1, allowed the appellant to recover possession of the suit property.