SUNDARESAN Vs. JAYAKUMAR AND ORS.

JUDGEMENT

(1.) 1st defendant in a suit for declaration and consequential prohibitory injunction is the appellant in this regular second appeal and also in the civil miscellaneous appeal. Plaintiff in the suit is the contesting respondent.

(2.) Pleadings relevant for disposal of the cases can be summarised as follows: Suit is filed through a power of attorney holder of the plaintiff in respect of the property described in the plaint schedule. Ext. A1 is the power of attorney executed by the plaintiff in favour of his wife. Ext. A2 is the document on which the plaintiff asserts his title. Definite case of the plaintiff is that the property belonged to one Chinnan Kunjan by virtue of a document executed in his favour in the year 1981. While he was enjoying the property, in 1987 he gifted the property in favour of his daughter Ambika from whom the plaintiff purchased the property for valuable consideration. Ext. A3 series are the tax receipts produced to show that the plaintiff is in possession of the property. On 14.01.1996, the 1st defendant along with some people tried to measure out a portion of the plaint schedule property. On enquiry, it was revealed that he obtained a decree in O.S. No. 23 of 1996 on the file of the Sub Court, Attingal against defendants 2 and 3 and his attempt was to execute the decree. In the suit neither the plaintiff nor his assignor was a party. It is, therefore, contended that the decree is not binding on the plaintiff. In the guise of executing the decree, the 1st defendant attempted to trespass upon the plaint schedule property and commit waste thereon. Hence the suit was filed.

(3.) The appellant/1st defendant contended that the suit is hit by res judicata. It is also contended that the suit is barred by Section 47 CPC. According to the 1st defendant, the plaintiff is a transferee of property from one of the defendants in the earlier suit, pending the litigation and, therefore, the transaction is hit by lis pendens. The very same plaintiff filed another suit before Sub Court, Nedumangad against the 1st defendant and the same was withdrawn knowing fully well that his claim was unsustainable. This suit is also without any bona fides. The allegations in the plaint that the 1st defendant tried to trespass upon the property described in the plaint schedule is absolutely false. Identity of the property shown in the plaint schedule is totally incorrect. According to the 1st defendant, while O.S. No. 689 of 1989 was pending, the property was purchased from one of the defendants in order to defeat the execution of the decree in the said suit. When the decree in O.S. No. 689 of 1989 was put to execution and when the properties were measured out, it was revealed that a portion of the building and well claimed by the plaintiff have encroached upon the property in the decree schedule in O.S. No. 689 of 1989. In order to wriggle out of the situation, the suit is filed. The plaintiff is not entitled to any of the reliefs.