KASIM; KHADEEJA Vs. IBRAHIM

JUDGEMENT

(1.) This second appeal arises from the judgment and decree of the District Court, Palakkad dismissing A.S. N. 94 of 2012 consequent to the dismissal of I.A. No. 503 of 2012 to condone the delay of 458 days.

(2.) The second appellant is the sister of the respondent. The first appellant is her husband. It is not in dispute that at a time when the respondent was going abroad, he had entrusted management of the suit property with the first appellant as per a power of attorney dated 15.05.1993. On the strength of that power of attorney, the first appellant was in occupation of the suit property. The power of attorney was cancelled on 17.06.2002. The respondent filed O.S. No. 151of 2002 against the first appellant for rendition of accounts. There, a decree was granted in favour of the respondent on 27.02.2002. The respondent filed O.S.No.130 of 2000 in the Sub Court, Ottapalam against the appellants for recovery of possession of the suit property with profits.

(3.) The appellants while admitting the power of attorney and its termination, claimed that the first appellant has executed an agreement for sale in favour of the second appellant on the strength of the power of attorney and that the second appellant has filed O.S. No. 53 of 2003 against the respondent for specific performance of that agreement. That suit was dismissed on 27.07.2007 against which RFA. No. 86 of 2008 is pending in this court. It is also contended that the suit is barred by constructive res judicata ( in so far as no prayer for recovery of possession was made in O.S. No. 159 of 2002).