ABRAHAM MATHEW Vs. MARIAMMA YOHANNAN

JUDGEMENT

(1.) The appellants herein are the defendants in O.S. No. 166/05 on the files of the Munsiff's Court, Ranni, as well as the appellants in A.S. No. 24/08 before the Additional District Court, Pathanamthitta. The respondent was the plaintiff in the Trial Court and the respondent in the lower Appellate Court. The suit was one for mandatory injunction, seeking a direction against the defendants to surrender the possession of the plaint schedule property and the building therein and in the event of defendants refusing to do so to evict them through Court and also for a permanent prohibitory injunction restraining the defendants from committing any acts of waste in the property.

(2.) Briefly put, the averments in the plaint are as follows: The plaintiff is the wife of one Yohannan, the deceased younger brother of the 1st appellant. The 2nd and 3rd defendants are the wife and son of the 1st defendant. According to the plaintiff, the plaint schedule property belonged to the above said Yohannan, as per sale deed No. 911/1977 of Ranni SRO. After the death of Yohannan on 03/02/1990, the property devolved upon the plaintiff and her two children - Sabina and Jobina. As the plaintiff and her husband were working in Germany, in order to safeguard the welfare of the children, who were studying in Kerala, the management of the plaint schedule property and the building therein was entrusted to the 1st defendant, who is the elder brother of the plaintiff's husband. Thus, permission was given to reside in the building for the better interest of their property and children studying in Kerala. Thereafter, the 1st defendant and his family members have been residing in the building in the plaint schedule property under the permission granted by Yohannan. Thus, the 1st defendant was acting only as an agent of Yohannan. Now, the plaintiff has revoked the above said permission and the defendants were asked to vacate the building. But the defendants are not willing to surrender possession of the property and to vacate the building thereon. Hence they filed the above suit and prayed for as stated above.

(3.) The defendants filed a written statement raising the following contentions: The plaint schedule property and the building therein are in the absolute possession and enjoyment of the 1st defendant and he is residing in the building with his family. After the purchase of the property, the 1st defendant renovated the building. Though the sale deed stands in the name of Yohannan as the owner of the property, the sale consideration was paid by the 1st defendant and from the date of execution of the sale deed, he has been in possession and enjoyment of the property. Therefore, Yohannan had no right over the plaint schedule property, and as such, the plaintiff being the legal heir of the deceased Yohannan also has no right over the property. No right had been devolved on them by the death of Yohannan. The suit is bad for non-joinder of necessary parties. The plaintiff and the children are not made parties in the suit. Simple suit for mandatory injunction is not maintainable and even if the allegations are true, the plaintiff ought to have filed a suit for recovery of possession. Similarly, the plaintiff has not impleaded the 1st defendant's daughter and two sons. As the property is in the possession of the 1st defendant, after 25/03/1977, the date of execution of the sale deed he has acquired right by adverse possession over the property and the building therein. Hence he prayed for dismissal of the suit.