P.K. GANGADHARAN Vs. VALLIKUNNAM H.M.I.

JUDGEMENT

(1.) This Second Appeal is filed by the defendants 2 to 4 in O.S.No.334 of 1989 on the file of the Munsiff Court, Kayamkulam. Respondents 1 and 2 herein were the plaintiffs in that suit and the third respondent herein was the 5th defendant in that suit, which was filed by the plaintiffs for declaration, recovery of possession and for injunction.

(2.) The plaint allegations in brief are as follows : Plaint schedule property belonged to George Cornation Club, Vallikunnam which was in the possession and enjoyment of that club. Late Neelakandan Krishnan was the husband of the first defendant and father of defendants 2 to 4. Neelakandan Krishnan was a dependent of Konnakottu Neelakanta Pillai, who was the president of of the club. Since Neelakantan Krishnan was the dependent of Neelakanta Pilla even from his childhood, the latter had permitted the former to reside temporarily in the building which belonged to Cornation Club situated in Sy.No.205/1C from 1962. After the death of Neelakantan Krishnan, defendants 1 to 4 continued to reside there. Neelakanta Pillai permitted Neelakantan Krishnan to cultivate cash crops in the plaint property. On the basis of the above permission, Neelakantan Krishnan was cultivating cash crops in the property. After the death of Neelakantan Krishnan, defendants 1 to 4 continued to cultivate in the property. While so, on 28.12.1970, the club has gifted the plaint schedule property to the plaintiff and 85 cents to the 5th defendant Karayogam. Plaintiffs have mutated the property paying tax. In the meantime, Neelakantan Krishnan filed O.S.No.3/71 before Munsiff Court, Kayamkulam against the plaintiff herein and others claiming exclusive right over the property. Since there was an order of injunction against the plaintiff herein, the plaintiff has not taken possession of the property. The plaintiff in this suit was the second defendant in that suit. The 2nd defendant contested the suit. In that case, the court found that Neelankantan Krishnan has no ownership right over the property, but he is residing in the building with the permission of the president of George Cornation Club. The matter was taken in appeal in S.A.No.968/76 before this Court. In that case, this Court found that Neelakantan Krishnan is not entitled to full ownership right over the plaint schedule property and that he was only a licensee. On 8.7.1986, Neelakantan Krishnan died and so the licence was terminated. Defendants 1 to 4 are only trespassers now. Hence, it is prayed that a decree may be passed declaring the plaintiff's title over the plaint schedule property, to evict defendants 1 to 4 from the plaint schedule property, restraining defendants 1 to 4 from cultivating cash crops or other permanent cultivation in the plaint schedule property, to restrain them by a permanent injunction from committing waste in the plaint schedule property and also for recovery of mesne profits at the rate of Rs. 150/- per annum with future interest.

(3.) The 5th defendant was set ex parte. Defendants 1 to 4 filed written statement contending as follows : The suit is not maintainable either in law or on facts. The suit is devoid of bonafides. It is denied that the plaint schedule property was in the possession and enjoyment of George Cornation Club. George Cornation Club mentioned in the plaint was functioning before 60 years. But before the year 1100 the functioning of the club was stopped. After 1100 the club was not functioning. Thereafter, nobody had any possession over the property and it was lying with bushes and shrubs. Neelakantan Krishnan, who was the husband of the first defendant and father of defendants 2 to 4 took possession of the same believing it to be a Government puramboke land, cleared the bushes and shrubs, put up structures there and started to reside there with family. He had planted trees and cash crops, constructed temple and well. He had lived there as owner of the same. Nobody claimed any right over the property. The statement in the plaint that Neelakanta Pillai was the president of the club is false. The statement that Neelakantan Krishnan was the dependent of Neelakanta Pillai is also denied. Neelakanta Pillai had no possession over the plaint schedule property. The statement in paragraph 4 of the plaint that Neelakanta Pillai had permitted Neelakantan Krishnan to reside in the building belonging to George Cornation club is false. There was no structures in the property which belonged to the club. There was no building in Sy.No.205/1C described in the plaint. The allegation in para 6 is not true. Neelakanta Pillai and others have no right or power to execute the gift deed described in the plaint. The defendants came to know about the gift deeds executed in favour of the plaintiff and 5th defendant only now. Those gift deeds have not been acted upon. The executants of those gift deeds had no right or possession over the property. So the gift deeds are not binding on the defendants. The plaintiffs have no right to get any relief based on that gift deed. In O.S.No.3/71 the possession of Neelakantan Krishnan over the property was declared by the court. After that suit, the plaintiffs have not taken any steps. So their right is lost. It can be seen from the plaint itself that Neelakantan Krishnan is the licensee of Neelakanta Pillai. As Neelakantan Krishnan became the licensee, he constructed structures therein. So it can be seen that his licence became irrevocable. As Neelakantan Krishnan's right and possession are not mentioned in the gift deed relied on by the plaintiff, for that reason itself it can be seen that the gift deed is a fabricated one. It is admitted by the plaintiffs that they have no possession over the property and that Neelakantan Krishnan is in possession. The plaintiffs have no right over the plaint schedule property. The property in Sy.No.205/1C is not included in the document of the plaintiffs. The plaintiffs have no right over the property which is in the possession of the defendants. In S.A.968/76, the plaintiffs herein were the defendants. In that suit, the possession of the defendants herein was not fully decided. Plaintiff's right is lost by adverse possession of the defendants. Hence, it is prayed that the suit may be dismissed with costs.