OUSEPH RAPHEAL Vs. MARGRET

JUDGEMENT

(1.) THE defendant, who suffered a decree of recovery of possession and injunction before the courts below, has come up with this appeal raising the following questions of law;

(2.) THE respondents filed a suit for recovery of possession and injunction. The respondents are the wife and children of late Rockey, who died in the year 1991. The appellant is the brother of Rockey, who was employed in Indian Air Force and demitted his office in 1978. Rockey married the 1st respondent on 22.01.1979. According to the respondents, Rockey acquired plaint item No.1 as per Ext.B1 assignment deed of 1972 and plaint item No.2 as per Ext.A2 assignment deed of 1975. The respondents allege that since Rockey was away in connection with his employment, the plaint items have been looked after by the appellant. The respondents have a further case that after the retirement of Rockey in the year 1978, he was staying with the appellant and family in plaint item No.2; and thereafter, Rockey and the appellant were looking after the schedule properties. However, in the year 1985, the relationship between the appellant and Rockey fell out. As the property continued in the custody of the appellant, after the death of Rockey in 1991, the respondents wanted a recovery of the properties; and thus, they filed the suit.

(3.) THE suit was resisted by the appellant. It was contended that the suit is bad for non -joinder of necessary parties as one Unnikrishnan, who is in possession of item No.2, was not impleaded in the suit. It was averred that the respondents have no right or possession over the schedule properties. The appellant further contended that the building in item No.1 was constructed by him in the year 1968 with the permission of the then owner and he was conducting a tea shop in the said building. Therefore, according to him, the building and the rest of item No.1 are in the possession of the appellant and nobody has any right over the item. It was also averred that if the respondents had any right, the same has been lost due to uninterrupted possession of the of the appellant since 1968. Regarding item No.2, the appellant contended that, that item was purchased by him using his own coins. He would also contend that few months prior to the death of Rockey, item No.2 was given to Rockey on condition that Rockey would not make any claim over item No.1. It is further contended that Rockey had transferred possession of item No.2 to Unnikrishnan.