THOMAS MATHEW @ THAMPIKUNJU Vs. VACHI YESUDASAN

JUDGEMENT

(1.) Defendants 2 and 3 in O.S.28 of 1987 of the Sub Court, Kottayam are the appellants. Suit was one for recovery of possession on title, with claim for mesne profits. Suit was decreed in favour of plaintiff, and aggrieved, defendants 2 and 3 have preferred this appeal.

(2.) Plaint property having an extent of 2 acres 81.288 cents formed part of 6 acres 50 cents belonging to one Dr.P.V. Cherian and his two brothers. On partition effected by the brothers plaint property was allotted to the share of Dr.P.V.Cherian. Sole plaintiff in the suit was the widow of Dr.P.V.Cherian, who had passed away in 1969. Defendants 5 to 9 are the children of plaintiff and Dr.P.V. Cheriyan, and suit was filed on behalf of them also. Case of plaintiff in brief was that the plaint property while lying as a waste land had been looked after by first defendant, predecessor of present appellants, even before her husband obtained that property as his separate share. The first defendant offered to purchase the plaint property from her husband sending advance amount towards the purchase price. However, sale was not completed and first defendant did not pay the balance amount. Defendants 1 to 3 have put up two buildings in the property and also inducted the fourth defendant in a portion thereof,discarding objections raised by plaintiff and defendants 5 to 9, was the case of plaintiff seeking recovery of plaint property on the strength of title, with mesne profits at the rate of 2500/- per annum. First defendant resisted the suit contending that his possession and enjoyment of plaint property was under an oral lease obtained over the entire extent of 6.5 acres of land which belonged to Dr.P.V. Cheriyan and his brothers in 1950, from one among the brothers. Annual rent payable was Rs.40/- per acre was his case. Claiming to be a tenant he asserted his right to have fixity of tenure over the plaint property. He also contended that he had entered into an agreement for sale of the plaint property with Dr.P.V. Cheriyan in October, 1969, fixing sale price of Rs.10,000/-. Towards purchase price he had paid a sum of Rs.7500/- was his further case. Suit was resisted contending that plaintiff and other co-owners, D5 to D9, legal heirs of Dr.P.V. Cheriyan, have lost their title by his long and continuous possession adverse to them, and, that he has obtained prescription of title by adverse possession.

(3.) On the pleadings of parties as above learned Sub Judge raised the following issues for trial.