RASHEED Vs. MARY FERNANDEZ

JUDGEMENT

(1.) This Regular Second Appeal has been directed against the judgment and decree in A.S.No.56/2012 on the file of I Additional District Judge, Ernakulam which arise out of the judgment and decree of O.S.No.74/2008 on the file of Sub Court, Kochi.

(2.) Defendants 1 to 3 are the appellants. (Parties will be referred as per their status before the trial court). The suit was one for recovery of possession of plaint B schedule property, damages for use and occupation and also perpetual injunction. Original plaintiff died pending the proceedings and his legal heirs were impleaded as additional plaintiffs 2 and 3. It is alleged that an extent of 7 cents of property in Sy.No.209/2 in Fort Kochi Village and house therein with their amenities is in the possession and enjoyment of the first plaintiff for the last fifty years as per gift deed No.447/1956 of Kochi S.R.O and the property is scheduled as A schedule property. First plaintiff reduced the appurtenant land in A schedule property by occupying the house in the year 1956 and renewed the house providing septic tank, latrine and other amenities and the plaintiffs are living along with the husband of 3rd plaintiff in the house. The property originally belonged to Palakkal Pailo Eleeswa of Fort Kochi from whom Narayana Iyer purchased the property and during the time of Narayana Iyer first plaintiff and his predecessors were in possession and enjoyment of the plaint schedule property. Late Narayana Iyer and his legal heirs were never in possession of the property and intervened with the plaintiff's exclusive possession of the property. Apprehending trespass and interference of 1st plaintiff's possession in 'A' schedule property by legal heirs of late Narayana Iyer or anyone claiming under them, plaintiffs filed O.S.No.47/2006 before Sub Court, Kochi and that suit was decreed, declaring the plaintiffs possession over the property and restraining the defendants from trespassing into the property. Earlier first plaintiff had filed O.S.No.386/1990 before the Munsiff's Court, Kochi for eviction of Adima and his legal heirs from the house in A schedule property. Munsiff court and first appellate court dismissed that suit. But this Court in R.S.A.No.687/1998 decreed the suit and defendants were directed to vacate from the plaint schedule house on the strength of title. On 8/4/2002, defendants were evicted and possession of the house was recovered. Thereafter, defendants encroached and put up a house on the eastern side of the land on 10/4/2002 using bamboo poles and tar sheets and it has been described as B schedule, in violation of the interim injunction obtained by the first plaintiff in O.S.No.218/2002 from Munsiff's Court, Kochi on 10/4/2002. Defendants have no interest or right in plaint A schedule property and plaintiffs have exclusive possession and enjoyment of plaint schedule property from 1956 onwards publicly and uninterruptedly as of right without being objected by the owner late Narayana Iyer or anyone else and perfected title about 40 years ago in 1968 by adverse possession and limitation. Plaintiff claimed an amount of Rs.300.00 per month towards damages for use and occupation till the recovery of plaint B schedule property. Permanent injunction is also sought against trespass and committing waste in plaint A schedule property.

(3.) Defendants 3 and 5 remained ex parte. Defendants 1, 2 and 4 filed written statement contending that the description of plaint A schedule is incorrect and plaintiff is not in possession and enjoyment of plaint schedule property. Suit is not maintainable. A portion of the plaint schedule property was enjoyed by the predecessor of the defendants and after their demise it is being enjoyed by the defendants. By gift deed No.447/1956 plaintiff did not get ownership or possession of plaint A schedule property. He became the owner of a thatched shed alone as per the gift deed. The defendants predecessor was in occupation of an unnumbered shed in plaint A schedule property. While so, the first plaintiff abandoned the house and left to Bombay. The first plaintiff's brother-in-law requested the defendants predecessor to look after and maintain the homestead. For decades together nothing was heard from the plaintiff. So defendants predecessor did not obtain a Corporation number to his thatched shed. In early nineties first plaintiff came back and requested the defendants father to vacate the house. Thereafter, the suit was filed and a decree was passed for recovering possession of the shed covered by the gift deed. The plaintiff has no case about the appurtenant land in that case or about the thatched shed in occupation of the defendants predecessor. First plaintiff was in Bombay for more than four decades prior to 1990. He started to occupy the shed in the year 2002 after getting delivery of the thatched shed from the defendant. At the time of delivery of that shed, the defendants unnumbered thatched shed was existing and the Ameen reported about it. Defendants done renovation work in the thatched shed and it has been displayed wrongly as B schedule in the plaint. Defendants have no knowledge about O.S.No.47/2006. The decree and judgment in O.S.No.47/2006 will not affect the possessory right of the defendants over the property. Defendants have not put up any new house as alleged on 10/4/2002. He only renovated the existing shed. So, the plaintiffs and defendants were in joint possession of the respective house within the land of Narayana Iyer. Plaintiffs are not entitled for any damages for use and occupation of B schedule property.