RAMAN SUKUMARAN Vs. PADMANABHA KURUP MADHAVA KURUP

JUDGEMENT

(1.) The appellants are plaintiffs, 1 and 3 in O.S. 11 of 1979 of the Munsiff Court, Harippad. Appellants along with the 2nd plaintiff filed the suit under O.21, R.103 of the Code of Civil Procedure for declaring their leasehold interest in the property after setting aside the order in E.A. 2543/1967 in O.S. 86/1958 rejecting their obstruction petition. The learned Munsiff accepting the finding of the Land Tribunal held that plaintiffs are entitled to have their leasehold interest declared over the plaint schedule property and the order passed in E.A. 2543/1967 rejecting the obstruction petition was set aside. It has been found that the plaintiffs are in possession of the property under their father's lease and that defendants 1 to 4 have no right to recover it from them in execution of the decree in O.S. 86/1958. Aggrieved by the judgment of the Trial Court, defendants 1 to 3 preferred A.S. 147/1977 before the Additional District Court, Mavelikara. The learned Additional District Judge allowed the appeal and dismissed the suit with costs.

(2.) When the second appeal came for hearing, the learned Single Judge referred it to the Division Bench to consider the question of the competence of one of the several cotenants to surrender leasehold right.

(3.) The suit is for declaration of the leasehold right of the plaintiffs over the plaint scheduled property and to set aside the order passed in the obstruction petition in O.S. 86/1958. Defendants 1 to 4 are the owners of the property. Plaintiffs, defendants 5 to 7, their deceased brother Raghavan and their mother 8th defendant are the legal heirs of deceased Raman who had leasehold right over the property. Defendants 1 to 4 are plaintiffs had filed O.S. 86/1958 against defendants 6 to 8 and deceased Raghavan for injunction restraining them from trespassing upon the property. Later, the plaint in O.S. 86/1958 was amended for declaration of title and recovery of possession of the property. Present plaintiffs were not parties to that suit. Plaintiffs in O.S. 86/1958 (present defendants 1 to 4) obtained decree and while the said decree was being executed, present plaintiffs obstructed the execution. It was there upon that defendants 1 to 4 filed E. A. 2543/1967 for removal of obstruction. That petition was allowed and the obstruction petition filed by the present plaintiffs was dismissed.