NARAYANI AMMA Vs. NARAYANAN NAMBOODIRI

JUDGEMENT

(1.) The plaintiff in O. S. No. 162 of 1975 on the file of the Munsiff's Court, Taliparamba is the appellant herein. The suit was filed praying for the grant of a permanent injunction and also for recovery of the plaint schedule properly in case the defendant is found to be in possession of the same with future mesne profits. The sole defendant is the respondent in this appeal. It is common ground that the plaint schedule property originally belonged to defendant's illom in jenmom. The illom leased the property to one Krishnan Nambiar years ago along with other properties. After the demise of Krishnan Nambiar his wife and children assigned the tenancy right over the plaint schedule property to the plaintiff's mother Madhavi Amma by Ext. A1 dated 2-10-1946. It is alleged in the plaint that from 1945 Madhavi Amma was in possession till her death. The Kerala Land Reforms Act 1964, as amended by Act 35 of 1969, came into force. As per S.62 of the Act, the right, title and interest of the landlord vested in the Government from 01/01/1970. Madhavi Amma filed O. A. 141 of 1970 before the Land Tribunal for purchase of the landlord's right. She died in November 1970. The Land Tribunal by Ext. A12 dated 24/11/1971 passed an order in her favour and the certificate of purchase was issued as per Ext. A3 dated 24/11/1971. According to the plaintiff, the defendant has no right in the plaint schedule property. The defendant is making attempts to trespass into the plaint property. The plaintiff is still in possession. If during the course of the suit the defendant is found to be in possession, his possession can be treated only as that of a trespasser and as such the plaintiff is entitled to recover the property on the strength of plaintiff's title. The plaintiff filed the suit praying for recovery of the plaint schedule property with future mesne profits.

(2.) The defendant contested the suit. The title of the plaintiff as pleaded was denied. It was stated that the mother of the plaintiff Madhavi Amma died on 11/11/1970. No legal representative was impleaded in the petition. O. A. 141 of 1970 abated due to non impleadment of legal representatives There was some dispute between the plaintiff and the defendant. They were settled. Finally by Ext. B1 dated 14/06/1971 the plaintiff assigned her rights in the suit property to the defendant. The assignment is in favour of 7 persons. Non impleadment of persons other than the defendant is fatal to the suit. The suit is bad for non joinder of necessary parties. Since an assignment deed was executed by the plaintiff, (Ext. B1), the defendant has title. He is in possession of the property. The plaintiff is not competent to question the same. No cause of action arose f or the suit. The suit deserves to be dismissed.

(3.) The Trial Court found that the "assignment deed", as evidenced by Ext. B1 is bad in law and that the plaintiff is entitled to recover/possession of the plaint schedule property from the defendant with future profits, The trail court held that since the defendant is the manager and Kartha of the family, the suit is not bad for non joinder of other members of the family. The suit was decreed for recovery of possession with future mesne profits, the rate of mesne profits to be decided at the time of execution. The defendant appealed to the District court. The learned District Judge, Tellicherry, in A. S.348 of 1976 by his judgment dated 7th September, 1978 set aside the judgment and decree of the learned Munsiff and dismissed the suit. The learned District Judge found that Ext. A8 (Ext. B1) is an "assignment" and not a "surrender". It was held that the plaintiff cannot have any cause of action against the defendant as pleaded. The defendant was found to be in possession of the property. Nagativing the contention, which was, for the first time argued before lower appellate court, to the affect that there was no consideration for Ext. A8, the learned District Judge found that Ext. A8 itself will show that consideration was present for the transaction. The District Judge adverted to the non impleadment of the legal representatives of Madhavi Amma in O. A. 141 of 1970 (Ext. A12) and held that the order passed by the Land Tribunal should be ignored due to non impleadment of the legal representatives of the deceased. It was not shown that the plaintiff was in any way misled to execute the document Ext. A8 (B1). On these premises, the learned District Judge set aside the Judgment and decree of the learned Munsiff and dismissed the suit. The plaintiff has come up in Second Appeal.