RASEENA Vs. SAMEER

JUDGEMENT

(1.) This review petition has been filed against the judgment in R.S.A.No.644 of 2021 dtd. 25/10/2021 dismissing the R.S.A filed by the review petitioners/appellants 1 to 6/defendants 1 to 6. Since the 5th appellant is abroad he has been made as 10th respondent in the review petition.

(2.) R.S.A has been filed against the judgment and decree in A.S.No.51/2014 on the file of Subordinate Judge's Court, Tirur which arise out of judgment and decree in O.S.No.256/2011 dtd. 11/4/2011 on the file of Munsiff's Court, Parappanangadi. The parties would hereinafter be referred as per their rank in O.S.No.256/2011. O.S.No.256/2011 has been filed by the plaintiff against the defendants 1 to 6, 7, 8, 9 and 10 seeking for eviction of defendants 1 to 6 from the plaint schedule property. The case of the plaintiff is that he purchased the plaint schedule property from defendants 9 and 10 as per document Nos.1684/2010 and 1683/2010 of Thanoor Sub Registry. But, at the time of purchase, defendants 9 and 10 as well as defendants 1 to 6 were residing in the house in item No.2 of plaint schedule property. Defendants 9 and 10 requested the plaintiff to reside in the house till the 8th defendant comes from abroad. Plaintiff agreed for the same and later 8 th defendant came and defendants 8 and 10 shifted their residence on 31/8/10. But defendant Nos.1 to 6 (appellants in R.S.A) continued to reside in the plaint schedule property. 1st defendant is none other than the daughter of 10th defendant and defendants 2 to 5 are her children and 6 th defendant is her husband. 8th defendant is the husband of the 9th defendant. Plaintiff is the brother of the 9 th defendant. It is further alleged that defendants 1 to 5 filed O.S.No.145/2011 against the 10th defendant for injunction against forceful eviction and 10th defendant filed O.S.No.41/2010 against the 1st defendant for injunction from forcefully dispossessing him. In O.S.No.41/2010 decree was passed in favour of the 10 th defendant on 14/10/2011. The specific case of the plaintiff is that at the time of purchase of the plaint schedule property 10 th defendant did not disclose the litigation pending between the parties. It is also alleged that the suits were filed in collusion between defendants 1 to 6 and 10. According to the plaintiff, the plaint schedule property and the house therein are in his ownership and possession and defendants 1 to 6 have no right in the property and the house situated therein, and they are liable to pay Rs.5,000.00 per month towards compensation and also prayed for a mandatory injunction against defendants 1 to 6 directing them to vacate the house and for a consequential permanent prohibitory injunction. Defendants 8 to 10 remained ex parte.

(3.) Defendants 1 to 6 filed written statement contending that plaintiff and defendants 9 and 10 colluded together in filing the suit. Plaintiff has no ownership and possession over the plaint schedule property. It is, during the pendency of O.S.No.41/2010, the documents were created. So, the transfer is hit by lis pendens. At that time, plaintiffs 1 to 6 were residing in the house. The suit was filed at the instance of the 10 th defendant. The documents in favour of the plaintiff were not acted upon. In O.S.No.41/2010, 10th defendant contended that he was in possession of the plaint schedule property including the residential house and defendants 1 to 6 are not residing in the house. The 1st defendant being the daughter of 10th defendant was residing in the house in the capacity as his daughter before and after marriage and she is residing in the house with her children. She is not residing in the house with the consent of the plaintiff. The plaintiff has not obtained the possession as per the document relied on by him. In O.S.No.145/2011 filed by defendants 1 to 5 against the 10 th defendant, his contention was that the property is not in his possession but was already transferred.