PAILOTH Vs. KUNJUVAREED

JUDGEMENT

(1.) THE appellant and the first respondent are brothers. THEir father "chacku" was conducting some trade in the building scheduled in the plaint. THE owner of the building was somebody else and Chacku had only a tenancy right in the building. In 1959 when the appellant was away in a distant place, some transactions took place between the first respondent and his father. THE suit arose from the aforesaid transactions.

(2.) THE appellants case is that the first respondent created a trust by annexing an obligation on the property which his father had transferred to the first respondent. On 2-9-1959 , the first respondent executed Ext. A2 agreement in favour of his father Chacku in which the first respondent declared his willingness to part with half of the possession of the building to the appellant "in case the appellant returns and says that he wants to conduct a business". This declaration, according to the appellant, amounts to creation of a trust in favour of the appellant and the first respondent is in the position of a trustee. After the death of Chacku, the appellant returned and asked the first respondent to part with one half of the possession of the shop room as the appellant had decided to start a trade therein from June, 1975 onwards. THE first respondent repudiated the demand and hence the appellant issued Ext. A3 notice to the first respondent on 29-10-1976 and formally demanded the first respondent to fulfil the obligation. THE first respondent, through Ext. A4 reply, rejected the appellant's demand. Hence the appellant filed the suit for division of the plaint schedule shop-room into two equal halves and to give possession of one half to the appellant.

(3.) THE learned Sub Judge found that Ext. A2 agreement was executed by the first respondent in favour of his father and the same is a genuine transaction. But on the question of surrender of the tenancy right by chacku, the court below found that the said case of the first respondent is true. THE further finding is that a fresh tenancy had been created between the landlord and the first respondent and as such, the appellant never had any right in the suit property. THE court below found that the rights of the appellant, if any, in the suit property had been "clearly lost by adverse possession", and that the suit should have been filed within a period of three years from the date of the appellant's return from Bombay in 1959. Thus, the learned Sub Judge found that the appellant's claim is clearly barred by limitation. On the strength of the aforesaid findings, the court below dismissed the suit with costs. Hence the appellant has filed this appeal.