M.N. PARTHASARATHI Vs. A.K. SANTHA

JUDGEMENT

(1.) This second appeal is at the instance of the plaintiff in a suit for recovery of possession of the plaint schedule property on the strength of his title and for arrears of rent in respect of a building possessed by the 4 th defendant. The trial court decreed the suit as prayed for. The judgment and decree of the trial court was reversed in first appeal by the learned Additional District Judge.

(2.) Brief facts, relevant for our purpose, are as follows: Appellant and respondents 1 to 3 are close relatives. In fact, 1st defendant is the sister-in-law of the appellant. Respondents 2 and 3 are her children. Plaint schedule property originally belonged to the 1st respondent's husband Purushothaman (brother of the appellant) as per Ext.A1 sale deed dated 25.06.1968. The property was assigned by deceased Purushothaman to the appellant. It is the case of the appellant that as he was away for long time to pursue his employment, he entrusted management of the property to his brother Purushothaman. There is a shed in the plaint schedule property and the 4th respondent is conducting a workshop therein as tenant. It is the case of the appellant that the 4th respondent has defaulted paying rent to him. From the records, it is seen that there was an earlier round of litigation between the appellant and respondents 1 to 3. A suit for declaration of title and injunction was filed by the appellant against respondents 1 to 3 as O.S.No.490 of 1984 before the Court of Munsiff, Muvattupuzha. Ext.B2 is the judgment in that suit. The appellant lost that suit, against which he preferred A.S.No.146 of 1987 before the Sub Court, Ernakulam. The lower appellate court partly allowed the appeal and the appellant's title over the plaint schedule property was declared. However, a decree for permanent prohibitory injunction against respondents 1 to 3 was declined finding that the appellant was not in possession of the property as on the date of the suit. It is an admitted case that the judgment and decree in A.S.No.146 of 1987 has become final. Ext.A2 is the certified copy of the judgment in A.S.No.146 of 1987 and Ext.A3 is the decree. It is the contention of the appellant that the respondents 1 to 3 have no manner of right to hold the property and therefore, the present suit for declaration of title and recovery of possession on the strength of his title.

(3.) Respondents 1 to 3 resisted the suit by contending that it is not maintainable for the reason that the suit claim is barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (in short, "the Code") . It is also contended, inter alia, that the appellant/plaintiff's right over the property, if any, had been lost by adverse possession and limitation. 4th respondent/defendant also opposed the suit by contending that he is not liable to pay any amount to the appellant.