KOCHU OUSEPH Vs. JOSEPH

JUDGEMENT

(1.) These appeals arise out of three suits O. S. Nos. 309, 308 and 311 of 1962 of the Munsiff's Court, Trichur. In the three suits the plaintiff and defendants 2 to 4 are the same. The persons arrayed as the 1st defendant in the three suits are three brothers, one Thomas, One Varkey and one Chacko. The suits are for recovery of possession of the suit properties on the basis of title. In the first suit, the property involved is one acre in extent, in the second suit 75 cents and in the third one acre altogether coming to 2.75 acres. According to the plaint claim in each of the suits the properties belonged to the family of the plaintiff and were involved in the partition suit O. S. 135 of 1109 of the Trichur District Court. By the decree passed in that suit the plaintiff's father is alleged to have obtained possession of the properties along with other items. It is the plaintiff's case that after the death of his father on 24-11-1125 plaintiff along with his brothers were in possession of the properties. There was a suit against the plaintiff's father and others in the Trichur District Court as per O. S. 10 of 1923 in which these properties were also involved. Advocate Sri A. F. Kakkappan had been appointed receiver in that proceedings. The receiver is said to have taken possession of the properties including the present suit properties and later entrusted the same to the plaintiff's brothers Anthappan and Paul under a lease arrangement. Plaintiff further contends that the lessees from the receiver granted licences to 1st defendant and some others to cultivate different portions of these properties with bananas, tapioca and other seasonal crops. Licences in respect of particular portions of the properties were not being granted to the same persons repeatedly but to different persons. Sri A. F. Kakkappan, advocate was subsequently removed from receivership and advocate Sri A. M. Sebastian was appointed in his place. The 1st defendant and others contended before him that the properties which they were cultivating were in their possession as lessees, the lease arrangement being with Rappai, the deceased father of the plaintiff entered years back. They denied possession under the receiver or receiver's lessee. Because of their obstruction the receiver sought orders from the court which directed the receiver to take bonds from the person in possession for safeguarding mesne profits of the properties. Pursuant to the court's order bonds were then taken from the 1st defendant and others.

(2.) In the partition between the plaintiff and his brothers the properties involved in the three suits were obtained by the plaintiff who subsequently moved the court for orders directing surrender of the properties from the persons in possession. This was objected to by the defendants according to whom they were lessees not under the receiver but were in possession under much earlier lease arrangements entered into with the plaintiff's father. They claimed fixity of tenure on the basis of subsequent land legislations. After hearing the parties, the court directed that if the plaintiff, if so advised he can file a suit to recover possession of the properties from persons in possession. It is pursuant to this direction that the present suits have been filed. The 2nd defendant in the suits is impleaded as person in possession under the 1st defendant and defendants 3 and 4 as assignees of the properties after the institution of the suits. The 4th defendant is the contesting defendant in all the three suits.

(3.) According to the 4th defendant the properties in all the three suits having the total extent of 2.75 acres were taken on lease by Varkey, and his brothers Thomas and Chacko for an annual rent of Rs. 55/- from Rappai, the deceased father of the plaintiff, in the year 112. It was subsequently that division was made between the 1st defendant and his brothers in which division, 1st defendant took 75 cents and Thomas and Chacko one acre ach. Thomas and Chacko assigned their rights to the 2nd defendant who in his turn assigned his rights to the 4th defendant in 1962 immediately after the suits were filed. 4th defendant claims to be in possession of the properties thereunder. As per the contentions of the 4th defendant, the lease arrangement said to have been effected by the receiver in favour of the plaintiff's brothers are not said to be binding on the suit properties as the properties were already in the possession of the 1st defendant and his brothers under the earlier lease from the father.