NARAYANA KAMATH Vs. GOVINDA PRABHU

JUDGEMENT

(1.) Tenancy right over an area of 50 cents together with the building thereon is the subject matter of dispute in this appeal and civil revision petition. The suit from which the appeal arises is for recovery of possession of the plaint A schedule property in the suit O.S.36/1980 before Sub Court, Irinjalakuda excluding the building thereon which is described in the B schedule. Recovery of possession of the C schedule properties is also claimed after demolition of a shop building alleged to have been constructed by the defendants. The revision is against the order of Appellate Authority (LR), Trichur in A.A 96/1982, the appeal preferred against the common order of the Land Tribunal, Kodungallur in O.A Nos. 151 of 1976 and 87 of 1980.

(2.) Plaint A schedule property in O.S.36/1980 belonged to the 2nd plaintiff and his brothers. First plaintiff obtained an assignment of the rights of 2nd plaintiff and thereafter got a release of the rights of the others. Defendants are alleged to be in possession of the house in the plaint A schedule which is described in the B schedule on the strength of an entrustment by 2nd plaintiff in favour of the 1st defendant on 1-12-1970. Defendants 2 and 4 are the brothers of 1st defendant and 3rd defendant, their mother. Fifth defendant is the wife of 1st defendant. Defendants are alleged to have put up a shop building in a portion of the property by trespassing upon the same. That portion is described as plaint C schedule.

(3.) Second plaintiff had instituted a suit as O.S.I36/1973 against defendants 1 to 3 for a prohibitory injunction seeking to restrain them from entering the plaint A schedule property as well as from putting up any building thereon. Plaint A schedule therein is the entire property including the residential building, of which the building excluding a lean-to is alleged to have been entrusted to the 1st defendant on 1-12-1970 on a monthly rent of Rs.25/-. The B schedule therein is the area where the shop building was constructed. That suit was resisted and separate written statements were filed by the 3rd defendant and defendants l and 2. It appears that a petition was filed by 3rd defendant herein as O.A. 45/1976 for purchase of landlord's rights claiming herself to be a tenant of the property. That petition was dismissed for default on 16-2-1976. The suit was subsequently withdrawn with permission to file a fresh suit. It was there after that O.S.36/ 1980 was filed for recovery of possession. In the meantime the 3rd defendant had filed O.A.151/1976 for purchase of the landlord's rights. That petition was allowed on 19-8-1976 and a copy of the order was produced in O.A136/1973. It was thereafter that permission to withdraw the suit was requested for. An appeal was filed against the order in O.S.151/1976 before the appellate authority as A.A.2400/1976. The appeal was allowed and the petition was remanded for fresh disposal. An original petition is also seen filed before this Court as O.P.3402/1979 by 2nd plaintiff and others to quash all the proceedings in O.A.151/1976 and to prohibit the respondent therein from proceeding with that case and in the alternative to direct the appellate authority to take back A.A.2400/1976 and dispose of O.A.151/1976 on its merits. That petition was dismissed.