LAWS(KER)-2015-3-331

RAMUNNI MENON AND ORS. Vs. THANKAN AND ORS.

Decided On March 04, 2015
Ramunni Menon And Ors. Appellant
V/S
Thankan And Ors. Respondents

JUDGEMENT

(1.) The legal representatives of the deceased 2nd defendant in the original suit are in appeal. The respondents are the legal representatives of the deceased 1st plaintiff, plaintiffs 2 & 3 and defendants 3 & 5-11 in the original suit. The suit was filed by deceased Aravindakshan Nair (the 1st plaintiff) along with respondents 1 and 2 herein for recovery of the possession of the property. In the plaint, it was alleged that the plaint schedule property belonged to the 1st defendant and her brother, Sankunni Nair, as per a sale deed No. 2218/1117 M.E. After the death of Sankunni Nair, the legal heirs of Sankunni Nair assigned half right over the said property, which they inherited from Sankunni Nair, to Kunhikavamma, who is the mother of defendants 1 to 4. The 1st defendant and Kunhikkavamma became the co-owners of the plaint schedule property. One Kunkumath Parangodan Nair, who was the predecessor in interest of the plaintiffs, took the plaint schedule property on lease on 24.10.1121. Though the lease was for a period of one year, he continued the tenancy on the same terms and conditions. After the death of Parangodan Nair, the suit property was partitioned in 1951. Thus, the plaint schedule property was allotted to one Lakshmi Amma and her children, who are the plaintiffs and the 5th defendant. Lakshmi Amma died in the year 1958. In the meanwhile, the rent for the years, 1130 and 1131, fell in arrears. Therefore, OS No. 338/1956 was filed before the Munsiff s Court, Wadakkancherry for realization of rent arrears as charged on the leasehold right over the property. In the suit, application for appointment of a receiver was filed for preservation of the profits of the property. Accordingly, Kunjikkavamma was appointed as the receiver. She took possession of the property. The suit was decreed in 1956 allowing recovery of rent arrears. However, the receiver continued in possession. An execution petition was filed as EP No. 130/1957, which was dismissed as provided in Act 1/57. Later, another execution petition was filed as EP No. 778/1966. That also was dismissed on account of the stay in Act 9/1967. After the advent of Act 36/69, the liability to pay future rent had ceased to exist. The family of the plaintiffs and the 5th defendant only survived. Kunjikkavamma died on 01.09.1970. After her death, applications were filed for recovery of the property from the possession of the receiver. However, those applications were dismissed finding that as the receiver had ceased to exist, the remedy is only to file a fresh suit. Accordingly, the plaintiffs filed the suit for recovery of possession.

(2.) In the joint written statement filed by defendants 1, 2 and 4, they admitted the lease in the name of Parangodan Nair. Though they admitted the execution of partition deed in 1951, by which the property was allotted to Lakshmi Amma, who is the mother of the plaintiffs and the 5th defendant, they contended that it was not given to them as stated in the partition deed. They contended that though the partition deed was executed, Govindan Nair, who is the son of Parangodan Nair, continued possession of the property even after partition. According to them, on appointment of Kunjikkavamma as receiver, she took possession of the property from Govindan Nair. In OS No. 338/56, the plaintiffs and the 5th defendant were arrayed as defendants 7 to 10. However, defendants 1, 2, 5 and 6 alone contested the suit. As the paddy field was not yielding, Lakshmi Amma and her children never attempted to take possession of the property. Subsequent to the dismissal of the execution petition in 1967, the plaintiffs and the 5th defendant approached Kunjikkavamma and agreed that they have no objection in taking the property by Kunjikkavamma and her 'taravadu', in case they were exonerated from the decree liability and the liability to pay future rent. Pursuant to that, no step was taken. Therefore, they contended that the right of the plaintiffs has been lost by adverse possession since 1966; and the same had been lost by waiver and abandonment also. If, at all, the plaintiffs and the 5th defendant had any right, the same had been lost by adverse possession and limitation.

(3.) In a separate written statement filed by the 11th defendant, it was contended that the suit is barred by res judicata and estoppel on account of the orders in OS No. 338/56. The lease in the name of Parangodan Nair was admitted. According to the 11th defendant, only the 5th defendant appeared in EP No. 778/66 and he did not take any step against the receiver. It was also contended that Kunjikkavamma and Janaki Amma cultivated the properties; and after the death of Kunjikkavamma, her legal heirs are in absolute possession and enjoyment of the property.