LAWS(KER)-2012-3-593

SUNNY VARGHESE Vs. P.P. GEORGE

Decided On March 29, 2012
Sunny Varghese Appellant
V/S
P.P. George Respondents

JUDGEMENT

(1.) THESE appeals arise from the common judgment and decree of learned Additional District Judge, Kottayam in A.S. No. 310 of 2008 and 311 of 2008 confirming the common judgment and decree of learned Principal Sub Judge, Kottayam in O.S. Nos. 57 of 2007 and 41 of 2005. The trial court granted a decree in favour of 1st respondent and the original 2nd plaintiff (she died pending first appeal and her legal representatives were impleaded) in O.S. No. 57 of 2007. O.S. No. 41 of 2005 filed by the appellant ended in a dismissal. First appellate court confirmed judgment and decree of trial court. Parties are referred as plaintiffs and defendant as in O.S. No. 57 of 2007. O.S. No. 57 of 2007 was originally filed in the court of learned Munsiff, Kottayam as O.S. No. 153 of 2005 and on account of pendency of O.S. No. 41 of 2005 filed by the defendant in the Principal Sub Court, Kottayam, O.S. No. 153 of 2005 was transferred to the Principal Sub Court as per order of learned District Judge, Kottayam, renumbered as O.S. No. 57 of 2007 and tried along with O.S. No. 41 of 2005.

(2.) ITEM No. 1 in O.S. No. 57 of 2007 belonged to the original plaintiff while item No. 2 therein is the building situated thereon. The husband of 2nd plaintiff died on 11.06.2003. 1st plaintiff is the brother of the 2nd plaintiff. According to the plaintiffs, 2nd plaintiff had allowed the defendant to reside in item No. 2 and while so, there was difference of opinion between the 2nd plaintiff and defendant which even led to the registration of a criminal case. Thereon, 2 plaintiff shifted her residence to the house of the 1st plaintiff. She executed Ext.A1, assignment deed No. 205 of 2004 dated 01.11.2004 in favour of the 1st plaintiff concerning the suit properties in O.S. No. 57 of 2007. While so, it is alleged in the plaint in O.S. No. 57 of 2007 that on 01.10.2004, 2nd plaintiff wanted the defendant to vacate the building in the suit property (item No. 1 in O.S. No. 57 of 2007). That was followed by the2nd plaintiff issuing Ext.A1, notice dated 10.02.2005 demanding the defendant to vacate the suit property. Since defendant refused, plaintiffs filed O.S. No. 153 of 2005 originally in the court of learned Munsiff, Kottayam which was later transferred to the court of learned Principal Sub Judge, Kottayam and renumbered as O.S. No. 57 of 2007.

(3.) LEARNED counsel for appellant/defendant contends that averments in the plaint in O.S. No. 57 of 2007 as also the evidence revealed that defendant is in absolute possession and enjoyment of the suit property in which case question of plaintiffs in O.S. No. 57 of 2007 seeking a decree for mandatory injunction as if defendant is the licensee of the building does not arise. It is also the contention of learned counsel that the 2nd plaintiff had executed Ext.B1, Will No. 70 of 2003 bequeathing the property in favour of the defendant and that at the time Ext.A1, assignment deed was executed on 01.11.2004 the 2nd plaintiff was not having sound disposing state of mind to execute the said document. It is also contended that evidence would reveal that 1st plaintiff got the said document executed under undue influence, coercion and threat. In the circumstances, trial and first appellate courts were not correct in granting reliefs to the plaintiffs based on Ext.A1, assignment deed dated 01.11.2004.