KUNHIKANNAN Vs. NAMBEESSAN

JUDGEMENT

(1.) Defendant is the appellant. Suit was for declaration of title and recovery of possession. Plaint schedule contains two items. As per the amended plaint, first item is comprised in Survey No. 31/1C having an extent of 6 cents and second item is comprised in Survey No 31/10 having an extent of 3 1/2 cents. Plaintiff alleged that properties inclusive of plaint schedule item No. 1 was obtained by Chiruthai Amma as per Ext. A1 lease deed dated 7-8-1929. After her death, her heirs entered into Ext. A2 partition deed of 1948 under which properties comprised in Ext. A1 lease deed was allotted in item Nos. 4 and 5 therein. Item No. 1 having 10 cents was allotted to the share of Narayani Amma and others, and item No. 5 having an extent of 45 cents was allotted to the share of Devaki Amma and others. Narayani Amma and others assigned item No. 4 as per Ext. A3 to the plaintiff. Plaintiff claimed that though the extent mentioned was 10 cents really it took in 15 cents and that the plaint item No. 1 six cents is out of the said 15 cents.

(2.) Plaintiff alleged, when the predecessor of the defendant attempted to trespass into plaint schedule item No. 1 he filed a complaint before the Tahsildar and the same was closed as per Ext. A6 proceedings on the undertaking that they would not commit trespass. Again when the attempt was made to trespass, plaintiff filed a complaint before the Judicial Magistrate of First Class who as per Ext. A7 order directed to seek relief by a civil suit. Accordingly, plaintiff instituted O. S.105 of 1963 for injunction, in the alternative for recovery of possession on the strength of his title. That suit was dismissed by Ext. B7 judgment. The appeal preferred by the plaintiff also was dismissed by Ext. B8 judgment. Second Appeal S. A. 305 of 1968 preferred by him too was dismissed by Ext. A-11 judgment. According to the plaintiff the dismissal of the Second Appeal was without prejudice to his right to recover possession and accordingly he instituted this suit.

(3.) As regards item No. 2, plaintiff claimed, the same is part of his house site, that he obtained assignment of jenm right of the same from the court auction purchaser pursuant to which he obtained Ext A-10 surrender of lease right, and while he was in possession the defendant trespassed into the property.