KUNJALACHI Vs. KOCHAPPU RAMAN, KAKKUZHI

JUDGEMENT

(1.) The appellants are the defendants 10 and 12 to 16, 22 to 25 in O.S.No.226 of 1985 before the Court of Munsiff, Aluva. Respondents are the plaintiffs and the defendants 1 to 9, 11 and 17 to 21 in the original suit. Since the appellants' contentions were repelled, they filed A.S.No.61 of 1999 before the Additional District Court, North Paravur. There again they suffered a set back and hence this second appeal.

(2.) Facts, in short, are as follows:Plaint schedule property originally belonged to Thuruthy Mana. Original plaintiff was in possession of the property as per Ext.A1 lease deed. Thereafter he purchased jenm right through Land Tribunal concerned (Ext.X4). When the 1st defendant attempted to trespass into the property, the plaintiff had to file O.S.No.439 of 1963 before the Munsiff's Court, Paravoor. The matter was taken up in A.S.No.157 of 1967 before the Additional District Court, North Paravur. In the appeal, the learned District Judge found that the plaintiff is in possession of the property. Thereafter there was no problem for some time. Subsequently in the year 1978, the 1st defendant along with other defendants in the suit trespassed into the property and put up buildings. The plaintiff though approached the Revenue Divisional Officer and Police, no tangible action was taken by them. 6th defendant is a resident of the neighbouring property and other defendants, who are close to the 6th defendant, attempted to trespass into the plaint schedule property. 3rd defendant put up a small shed in the property and started residence. Due to political influence, the police was reluctant to take action against the defendants. Hence the suit for recovery of possession of the property, mandatory injunction directing the defendants to demolish the houses put up by them and a permanent prohibitory injunction restraining the defendants from obstructing the plaintiff's possession over the property. During the pendency of the suit the original plaintiff died and his legal heirs were impleaded as additional plaintiffs.

(3.) The contesting defendants filed written statements raising similar contentions. Original plaintiff was never in possession of the plaint schedule property as per Ext.A1 lease deed. The property was in the possession of several persons. Decree in O.S.No.439 of 1963 and the judgment in A.S.No.157 of 1967 are not binding on the defendants. The defendants are in possession of the property and they have planted trees thereon as part of their enjoyment. It is incorrect to say that the 1st defendant unauthorisedly put up a house in the year 1978 in the plaint schedule property and thereafter four other houses were also put up with the help of other defendants. The said houses were in existence long before. Contention that the plaintiff obtained purchase of jenm right through the Land Tribunal is opposed. If at all Ext.X4 was issued by the Land Tribunal, it does not bind the defendants. There was a previous case filed by the jenmi against the present plaintiff and his children along with one Maniyan Kandankoran for arrears of rent and to evict them from 2.21 acres of property. That suit was compromised between the present plaintiff and the plaintiff in O.S.No.298 of 1953 and thereafter Ext.B1 decree was passed on 31.01.1956. Ext.B1 decree is not binding on Maniyan Kandankoran since he was not a party to the compromise. As per the compromise, the plaintiff obtained only one acre of property including his house. Pattam (rent) for the said one acre was fixed as six paras of paddy and a bunch of plantains. Balance 1.21 acres of property was released by the plaintiff to the jenmi Mana towards arrears of rent. Hence the plaintiff has no right over 1.21 acres of property. If at all the 1st defendant had anything done in violation of the injunction decree in O.S.No.439 of 1963, the plaintiff should have resorted to the remedies under Order XXI Rule 32 of the Code of Civil Procedure, 1908 (in short, Code ). Taking no steps in that regard would show that the plaintiff was not in possession of the property and the defendants did not trespass into it. Various defendants are in possession of various parts of the property which was not specifically described in the plaint. Therefore, the plaintiff is not entitled to get any relief.