KRISHNAN NAMBIAR Vs. SANKARA KURUP

JUDGEMENT

(1.) This appeal arises from the judgment and decree of the Sub Judge of Vadakara in O.S. No. 156/93.

(2.) The appellants were defendants 1, 2 and 4 in O.S. No. 156/93 before the Sub Court of Vadakara. That suit was filed by the first respondent as plaintiff for recovery of possession of the plaint schedule property with damages. The facts are that the first respondent is the oldest male member of Malappangatt tavazhi. He filed the suit as Karanavan of the said tavazhi for recovery of possession of the plaint schedule property. Item No. 1 of the plaint schedule was given on lease as per the lease deed dated 13.6.1982. Items 2 to 4 belonged to the said tavazhi and they were in possession of them. The third defendant was the earlier karanavan and Chandu Kurup was the predecessor. While the 3rd defendant was the karanavan, he allowed defendants 1 and 2 to take income from the plaint schedule properties. Later defendants 1 and 2 formed a trust. Thus, the plaint schedule properties are trust properties now. It was alleged that defendants 1 and 2 or the trust have no right to get possession of the plaint schedule properties. According to the plaintiff the trust was formed only to defeat the right of the family members. There was a building in the property and there were several trees. The house was demolished and one jack tree and mango tree has been cut and removed. Thus, Rs. 10,000/- was claimed as damages by the plaintiff apart from recovery of possession on behalf of the tavazhi. Defendants 1, 2 and 4 contended that the suit was not maintainable and that after the Kerala Hindu Joint Family Abolition Act, 1976 the plaintiff cannot file the suit as karanavan. It was also contended that as the plaintiff was one of the trustees, he cannot act against the trust. It was also contended that the house was demolished and the trees were cut as per the resolution recorded in the minutes book and the plaintiff was a signatory to it. The fourth defendant is a trust and the plaintiff was not entitled to get recovery of possession or damage. It was also contended that the suit was not filed in the representative capacity. After framing necessary issues, the lower court marked Exts.A1 and B1 to B6 and examined PW.1, and DW.1 and DW.2. The lower court held that by impleading the supplementary 4th defendant the suit was not bad for non joinder of necessary parties. It was found that the Court fee paid was correct. Relying on the decision reported in 1993 (2) KLT 67 (Valsala v. Sundaram Nadar), the lower Court held that the suit was maintainable as one coowner is entitled to recover possession on behalf of the other coowners. Thus, it was held that there was no necessity to file the suit under O.1 R.8 of CPC. Regarding the damage it was held that the plaintiff can recover proportionate share of damages due to him. Thus, the lower court decreed the suit for recovery of possession of the share of the coowners other than that mentioned in Ext.B5. It was further decreed that the plaintiff was entitled to recover his share of damages with interest at 6% from the date of suit till realisation. Aggrieved by that judgment and decree this appeal is filed. Cross objections are filed for granting the reliefs fully as prayed for.

(3.) According to the learned counsel appearing for the appellants the lower court was not correct in decreeing the suit for recovery of possession of the share of the plaintiff and that the lower court went wrong in allowing damages due to the plaintiff as one of the sharers. According to him, the decision reported in 1993 (2) KLT 67 is not applicable to the facts of the present case. It was argued that in view of S.14 of the Trust Act one of the trustees cannot act against the interests of the trust. Aggrieved by the partial decree, the plaintiff filed cross objections stating that the decree ought to have been to cover the plaint schedule property and damages of Rs.10,000/-.