VIJAYALAKSHMI Vs. NARAYANAN

JUDGEMENT

(1.) Appellant is the third defendant in OS 500 of 2000 on the file of Munsiff Court, Aluva. First respondent originally instituted RCP 28 of 1998 before Rent Control Court, Aluva to evict the legal heirs of deceased Narayanan, contending that Narayanan was the tenant of the building now occupied by the appellant and on the death of Narayanan his rights devolved on his wife and children. Defendants in the suit disputed the title of first respondent. Rent Control Court, under Ext. A11 order found that there is a bona fide dispute of title and directed first respondent to approach the Civil Court. First respondent thereafter instituted OS 167 of 2000 on 15/04/2000 seeking a decree for permanent prohibitory injunction restraining appellant and others from carrying out any reconstruction in the building. No decree for recovery of possession was sought for and it was only a suit for injunction. Subsequently OS 500 of 2000 was filed on 13/11/2000 seeking a decree for recovery of possession on the strength of title. The suit was resisted by defendants disputing the title as well as the right to recover possession. It was also contended that suit is barred under O.2 R.2 of Code of Civil Procedure in view of the omission to claim a decree for recovery of possession in OS 167 of 2000.

(2.) Learned Munsiff on the evidence of PW 1 and Exts. A1 to A18 and Ext. C1 and C1(a) dismissed the suit holding that suit is barred under O.2 R.2 of the Code and without terminating tenancy by sending a notice under S.106 of the Transfer of Property Act, first respondent is not entitled to recover possession of the building. First respondent challenged the decree and judgment before Additional District Court, North Paravur in AS 2 of 2005. Learned Additional District Judge, on reappreciation of evidence, set aside the findings of learned Munsiff and held that suit is not barred under O.2 R.2 of the Code as the original suit was only one for injunction and the latter suit was for recovery of possession and not on the same cause of action. Learned District Judge also found that as defendants are not claiming that they are tenants, no notice under S.106 of the Transfer of Property Act is warranted, as the suit was instituted consequent to Ext. A11 order as the tenancy was disputed and findings of learned Munsiff is unsustainable. Upholding the title under Ext. A1 to A3 as well as the bona fide need as provided under S.11(3), learned District Judge granted a decree for recovery of possession on the ground provided under S.11(3) of Kerala Act 2 of 1965. The decree and judgment are challenged in the second appeal.

(3.) Learned counsel appearing for appellant and learned counsel appearing for respondent who appeared consequent to the application filed under S.5 of Limitation Act to condone the delay in filing appeal, were heard.