JOSE Vs. SELVIN

JUDGEMENT

(1.) The respondent herein instituted O.S.No.626 of 1997 in the Court of the Munsiff of Kodungallur joining the petitioner's father George, who is the respondent's paternal uncle, as the sole defendant. The respondent had in O.S.No.626 of 1997 prayed for a permanent prohibitory injunction restraining the defendant from trespassing into the plaint schedule property and reducing it to his possession. The petitioner's father George thereafter instituted O.S.No.77 of 1998 in the Court of the Munsiff of Kodungallur joining the respondent herein and another as defendants wherein he prayed for a permanent prohibitory injunction restraining them from trespassing into the plaint schedule property and reducing it to their possession or from destroying the fence and compound wall situate around the plaint schedule property.

(2.) The suit properties involved in O.S.No.626 of 1997 and O.S.No.77 of 1998 are different parcels of land. The suits were however jointly tried along with O.S.No.572 of 1997 filed by another wherein the plaintiff in O.S.No.626 of 1997 and the plaintiff in O.S.No.77 of 1998 were joined as the defendants. By Ext.P1 common judgment delivered on 25.10.2007, the Court of the Munsiff of Kodungallur dismissed all the three suits. Aggrieved thereby, the plaintiff in O.S.No.626 of 1997 (the respondent herein) filed A.S.No.11 of 2008 in the Court of the Subordinate Judge of Irinjalakuda. The petitioner's father George, the defendant in O.S.No.626 of 1997 and the plaintiff in O.S.No.77 of 1998 passed away on 3.3.2008 after the three suits were dismissed. A.S.No.11 of 2008 was filed on 24.1.2008 before the petitioner's father George passed away. After George died, his wife and daughters filed A.S.No.139 of 2008 in the Court of the Subordinate Judge of Irinjalakuda challenging the decree and judgment dismissing O.S.No.77 of 1998, joining, besides the defendants in the suit, the petitioner herein, as one among the respondents in the appeal.

(3.) The appeals, A.S.Nos.11 and 139 of 2008 were heard and allowed by Ext.P4 common judgment delivered on 29.1.2013. A.S.No.11 of 2008 filed by the respondent, who is the plaintiff in O.S.No.626 of 1997 was allowed and the defendant therein (the petitioner's father) was restrained from trespassing into 30 cents of land situate in Sy.No.37/6 and 3 cents of land situate in Sy.No.33/5A marked as plots K and J in Ext.C2(a) sketch and 3 cents of land situate in Sy.No.37/5B marked as plot Rs.therein. In this original petition filed under Art. 227 of the Constitution of India on 27.5.2013, the petitioner seeks a declaration that Ext.P4 judgment in A.S.No.11 of 2008 on the file of the Court of the Subordinate Judge of Irinjalakuda is a nullity. The principal contention raised in the original petition is that A.S.No.11 of 2008 stood abated on the expiry of the period of 90 days from the date of death of George, the sole respondent therein, on 3.3.2008. It is also contended that the decree in A.S.No.11 of 2008 is passed against a dead person and therefore, it is a nullity.