RAGHAVAN VISWAMBHARAN Vs. NEELAKANTAN MADHAVAN

JUDGEMENT

(1.) On 19.11.2007 an order was passed for posting the Second Appeal for hearing on the question as to whether the first appeal before the lower appellate court had abated.Learned Counsel appearing for both parties submitted that this question is not very relevant. The suit was filed for declaration of title and for injunction. There were three defendants in the suit. The first defendant, Muthan Nadar Solaman, was exparte in the trial court. The suit was contested by defendants 2 and 3. The trial court decreed the suit. Defendants 2 and 3 filed an appeal before the lower appellate court. The first defendant was the third respondent in the appeal. He died during pendency of the appeal. Since the third respondent in the appeal was exparte in the trial court and since he would be a party benefited in case the appeal was allowed, I do not think that the question of abatement need be considered as a preliminary point, as agreed by both the counsel.

(2.) The appellants are the plaintiffs in O.S. No. 208 of 1986, on the file of the Court of the Principal Munsiff of Neyyattinkara. The suit was filed for declaration of title and possession of the plaint schedule property and for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property or taking yield from the property or from cutting and removing trees or committing waste. Defendants 2 and 3 contested the suit.The trial court held that the plaintiffs have established their title and possession over the plaint schedule property and the suit was decreed.

(3.) Defendants 2 and 3 filed A.S. No. 807 of 1994, on the file of the Court of the Subordinate Judge of Neyyattinkara, challenging the judgment and decree of the trial court. The Appellate Court allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit.