KALUKURUMBAN Vs. SAROJINI AMMA

JUDGEMENT

(1.) This second appeal arises from the judgment and decree of the Additional Sub Judge of North Parur in A. S. No. 213/87 which arose from the judgment and decree of the Munsiff of Perumbavoor in O. S No. 539/84.

(2.) The appellants were defendants 1 to 6 in O. S. No. 539/84 before the Munsiff's Court of Perumbavoor. The predecessor in interest of the respondents by name Sankaran Nair filed the suit for declaration of his title and possession over the plaint schedule property and later added the prayer as for recovery of possession of the plaint schedule property on the strength of his title with mesne profits. The facts were that Sankaran Nair's father by name Govindan Nair had 4 acres and 20 cents of property in Thandaper No. 885. A portion of the property was acquired for the purpose of Periyar Valley Irrigation Canal and a portion was acquired for the road. Thus Sankaran Nair and his brothers and sisters acquired 1 acre and 12 cents by inheritance from Sankaran Nair's father. Later the brothers and sisters of Sankaran Nair released their right in his favour as per three release deeds. Sankaran Nair's mother Bhargavi Amma got 68 cents by succession and it was gifted to the plaintiff as per the registered gift deed of the year 1976. Thus Sankaran Nair obtained 2 acre and 92 cents out of which 15 cents was given to the first defendant as per the order of the Land Tribunal of Vazhakkulam in O. A. No. 330/71 and 8 cents was assigned in favour of the second defendant in O. A. No.331/71. Thus Sankaran Nair claimed title and possession over the balance 2 acres and 69 cents. The defendant filed application before the Special Tahsildar of Kunnathunad for assignment of 2 acres and 60 cents in Sy. No. 291/1C/3 claiming it as Poramboke land. Then defendants 1 and 2 filed O. S. No. 3/76 for permanent prohibitory injunction restraining Sankaran Nair from trespassing into the property. Thus Sankaran Nair filed O. S. 4/76 to restrain the appellants from trespassing into the plaint schedule property. O. S. No. 3/76 was dismissed and O. S. No. 4/76 was decreed on 29.10.1980. Thus defendants filed appeals as A.S. No.128/82 and A. S. No. 129/82. A. S. No.128/82 arose from the judgment and decree in O. S. No. 3/76 and A. S. No. 129/82 arose from the judgment and decree in O. S. No. 4/ 76. As per the common judgment O. S. No. 3/76 was decreed and O.s.No.4/76 was dismissed . In O. S. No. 4/76 the plaint schedule property was shown as 2 acres and 5 cents. Then Sankaran Nair filed I. A. No. 1990 for temporary injunction till revision was filed before this court and obtained a stay. But later the stay was vacated. Thus the present suit was filed for declaration of title and possession over the plaint schedule property and for prohibitory injunction restraining the defendants from trespassing into it. The 7th defendant remained ex parte and defendants 1 to 6 who are the present appellants contended that the suit was not maintainable as Sankaran Nair had no right over the plaint schedule property and that in view of the decree and judgment in A. S. No. 128/82 and A. S. No. 129/82 the suit was barred by res judicata. Later Sankaran Nair amended the plaint as per I. A. No. 1949/86 and claimed recovery of possession of the plaint schedule property on the strength of his title with mesne profits. Then defendants 1 to 6 filed additional written statement contending that the defendants constructed the building in the plaint schedule property after availing a loan from the Kerala Harijana Welfare Society and that even if the plaintiff had any right that was lost by adverse possession and limitation. They contended that the first defendant's sons by name Govindan and Thankappan are necessary parties. Thus they contended that the suit was bad for non joinder of necessary parties. As there was no prayer for removal of the building constructed by the defendants, it was contended that the suit was not maintainable.

(3.) After framing necessary issues the Trial Court examined PWs 1 to 3, D.W. 1 and D.W.2 and marked Exts. A1 to A16, B1 to B3, C1 and C1(a). After hearing both sides the Trial Court considered the matter and held that the suit was not bad for non joinder of necessary parties. It was found that the court fee paid was correct. It was found that there was no res judicata. As the plaint was amended for recovery of possession it was held that the plaintiffs possession did not arise for consideration. it was held that the identity of the plaint schedule property is as shown in Ext.C1(a) plan. But under issue No. 9 it was held that the plaintiff failed to prove the identity of the plaint schedule property as described in Ext. A1 to A4 title deeds. It was held that the defendants trespassed into the plaint schedule property after the disposal of O. S. No. 3/76 and O. S. No. 4/76 and C. M. P. No. 9625/86. The question of adverse possession and limitation was not considered. It was held under issue No. 12 that the plaintiff failed to prove his subsisting title over the property as identified by the Commissioner. Thus the suit was dismissed without costs. Aggrieved by that judgment and decree Sankaran Nair filed appeal as A. S. No. 213/87. It was originally filed as A. S. No. 60/87 before the Additional District Court of Paravur and it was made over for disposal to the Sub Court. There it was renumbered as A. S. No. 213/87. The learned Additional Sub Judge sent two different commissioners and obtained Ext.C2 report, Ext. C2(a) plan, Ext.C3 report and Ext.C3(a) sketch. Before the lower appellate court Exts. A18 to A20 and C2 to C3(a) were marked and P.W.4, D.W.3 and D.W.4 were examined. After considering the evidence the lower appellate court held that the plaint schedule property was properly identified in the light of Exts. C1 to C3. But the lower appellate court did not state as to which report and plan are superseded. Thus the appeal was allowed and setting aside the judgment and decree of the Trial Court recovery of possession of 1 acre and 93 cents was allowed and it was directed that Ext.C2(A) plan will be appended to the decree. It was further directed that the buildings constructed by the defendants in the plaint schedule property should be removed within 3 months failing which the plaintiff was allowed to remove the same through court and to recover the expenses for the same from defendants 1 to 6.The costs of the plaintiff in both the courts was allowed. Aggrieved by that judgment and decree this second appeal is filed by defendants 1 to 6.