EDAKKADANKANI CHOTHI MAMMU Vs. ODYKKAN VEETTIL MADHAVI AMMA

JUDGEMENT

(1.) Second defendant in O.S.73/85 on the file of Munsiff Court, Taliparamba is the appellant. First respondent is the plaintiff and second respondent the first defendant. Suit was filed seeking recovery of possession of plaint schedule building with arrears of rent. First respondent contended that property originally belonged to Kalliyad tarwad in jenm right and she obtained possession of property under an oral lease and he constructed the building and later purchased jenm right as per order in O.A.414/1976 of Irikkur Land Tribunal. It was also contended that while so the building was rented out to first defendant on a monthly rent of Rs. 10/- on 20.2.1973 and he has been in possession of the building as a tenant but defaulted to pay the rent subsequent to 1981 and therefore she sent Ext.A4 notice terminating the tenancy and demanding surrender of possession, but first defendant did not surrender the building or pay the rent. It was contended that when first defendant attempted to trespass into the property, plaintiff was compelled to file O.S.73/82 before Munsiff Court seeking a decree for injunction and though first defendant denied the title learned Munsiff upholding the title of plaintiff granted a decree for injunction. It was also contended that first defendant thereafter filed an application before the Land Tribunal claiming to be a kudikidappukaran without impleading plaintiff and knowing about it plaintiff got himself impleaded in that O.A.and under Ext.A3 order the application was dismissed and contention of first defendant is in collision with appellant and therefore plaintiff is entitled to the decree. First defendant filed a written statement admitting that the property originally belonged to Kalliyad tarwad but denying the right of plaintiff under the lease. It was contended that building was constructed by Payyar who granted a lease of the building to first defendant and he was continuing in possession of the building as a tenant under Payyar and while so, Payyar sold the property to appellant and he is continuing in possession as tenant under the appellant. Appellant was impleaded. Appellant filed a written statement reiterating the contentions raised by first defendant. According to appellant, the building though originally belonged to Kalliyad tarwad it was outstanding of lease in favour of Payyar and while so Payyar constructed the building and thereafter granted the building on a monthly rent of Rs. 3/- to first defendant and later Payyar transferred the right in favour of appellant and he is the absolute owner of property and plaintiff is not entitled to the decree sought for. It was contended that decree in O.S. 73/82 is not binding on the appellant as appellant was not a party therein and the suit is only to be dismissed.

(2.) Learned Munsiff framed the necessary issues. On the evidence, learned Munsiff found that plaint schedule property belonged to plaintiff under Ext.A6 purchase certificate issued by Land Tribunal and Exts.A1 and A2 decree and judgment in O.S.73/82 establish that plaintiff has title to the property eventhough first defendant had denied the title of plaintiff. Learned Munsiff granted a decree holding that under Ext.A3 order of Land Tribunal, title of plaintiff was established. Learned Munsiff also found that there is no evidence to prove that plaint schedule property belonged to Payyar as claimed and even Payyar was not examined. In such circumstance, case of appellant was rejected upholding the case of plaintiff and a decree for recovery of possession of the building with arrears of rent was granted.

(3.) The decree and judgment was challenged before Sub Court, Payyannur by appellant. First defendant did not challenge the decree, though decree is for recovery of possession of the building from the possession of first defendant with arrears of rent. Learned Sub Judge on reappreciation of evidence confirmed the decree and judgment and dismissed the appeal. It is challenged in this Second Appeal.