SUMITHRAN Vs. NEELAKANTAN

JUDGEMENT

(1.) Plaintiffs in O.S. No. 788/1993 on the file of the Additional Munsiff Court-I, Neyyattinkara, who are aggrieved by the order in I.A. No. 3633/2014 dtd. 9/6/2015, have preferred this Original Petition under Article 227 of the Constitution of India.

(2.) Heard the learned counsel for the petitioners as well as the contesting 27 defendant, since other parties not arrayed in this Original Petition. It is submitted by the learned counsel for the petitioners that the petitioners filed petition under Order 6 Rule 16 of the Code of Civil Procedure to strike down the contentions in the written statement filed by the 27 defendant, whereby 27 defendant claimed right over the plaint schedule property as per settlement deed No. 1528/1997 and also claimed leasehold right over 50 cent forming part of the plaint schedule items, in continuation of enjoyment of the said right by his father Keshava Panicker. It is argued by the learned counsel for the petitioners that the court below failed to note that defendants 22, 23 and 25, litigating under the same title, raised contentions of similar nature as raised by the 27 defendant and was found against, as per Ext.P4, the order in O.A. No. 506/89 dtd. 6/3/1992, the Land Tribunal. It was found by the Land Tribunal that Parvathy, Dakshayani, Viswambharan and Ramachandran were not entitled to get fixity of tenure. Therefore, the 27 defendant, who is claiming right under the same title and was declared exparte earlier, cannot raise the said plea in the written statement subsequently filed and the same is liable to be struck down by invoking power under Order 6 Rule 16 of the Code of Civil Procedure.

(3.) While repelling this contention, the learned counsel for the 27 defendant submitted that the total extent of plaint schedule property is 10 acre of land and out of the same, 27 defendant put up independent claim of tenancy in respect of 50 cent alone and the said property is not the property claimed by Parvathy, Dakshayani and others as per O.A.506/89. Therefore, the prayer canvassed to strike down the pleadings of the 27 defendant cannot be allowed and therefore the court below rightly negatived the said contention. Here the total extent of plaint A schedule property is 10 acre, out of which Parvathy, Dakshayani and others claimed leasehold right in respect of 6.50 acres. The same was found against. However, it could not be held that 50 cent out of 10 acres, over which the 27 defendant asserts leasehold right, may not be the same portion of the property.