(1.) This appeal is filed against the judgment and decree in O.S.No.87 of 1996 of the Sub Court, Pala. Second defendant has come in appeal. The suit was originally filed for an injunction. But subsequently, the suit was amended for a declaration of title. The defendants filed written statements by which they raised a counter claim for recovery of possession of the property. The facts of the case are as follows:
(2.) The first plaintiff and the second defendant are brothers. The second plaintiff is the son of the first plaintiff. The father of the first plaintiff and the second defendant executed a deed in favour of the second defendant. That included the plaint schedule property also. Originally, the plaintiff termed this transaction as a gift. Subsequently, the plaint was amended by stating that it is not a gift deed, but a Will. In the property owned by the second defendant by the gift, the second defendant and the father were living. The first plaintiff was in Malabar. He became sick. Hence, he had to come back from Malabar. When he came back, he was allowed to reside in the building in the plaint schedule property. Even after the death of the father, the plaintiff was in possession of the property. According to him, the plaintiff has perfected title by adverse possession and limitation. The purpose for filing the suit was that a document, Ext.B8 was executed by the second defendant in favour of the first defendant by which the property was sold to the first defendant. The plaintiff, therefore claimed declaration of title to the plaint schedule property and recovery of possession of the same.
(3.) The defendants filed written statement. In the written statement, it was stated that Ext.B1 was a gift deed executed in favour of the second defendant by the father. The extent was 4 acres and odd. Out of this, an extent of 1 acre and 80 cents which is the property scheduled in the plaint schedule property was also gifted. After the property was gifted, the second defendant was staying along with his family. The father executed another gift in favour of the first plaintiff and the second defendant. That is Ext.B9. The properties are different from the plaint schedule property. The second defendant further submitted that he was ready to alienate the property, since she is the owner thereof. The lower Court, after verifying the records and after going through the evidence, declared title of the plaintiff over the plaint schedule property and the counter claim was dismissed. It is against that this appeal is filed.