KAKKOTHKAVUNGAL SUDHEER Vs. K K CHITHRALEKHA

JUDGEMENT

(1.) Plaintiff in the suit is the appellant. The suit was one for injunction. The first defendant is the elder sister of the plaintiff. The second defendant is the husband of the first defendant. The suit property measuring 27.5 cents belonged to the first defendant. On 2.5.1989, the first defendant executed Ext.X1(a) settlement deed in respect of the suit property in favour of the plaintiff subject to her right to take usufructs therefrom during her life time and her and her husband's right to reside in the building in the suit property during their life time. Later, both the plaintiff and the first defendant together availed a loan from a bank mortgaging the suit property. The case of the plaintiff is that the building in the suit property was one constructed by the plaintiff and the loan was availed for the purpose of construction of the said building. It is also his case that both the plaintiff and the defendants were residing in the building in the suit property and in course of time, the second defendant left the company of the first defendant. It is the further case of the plaintiff that the first defendant then requested the plaintiff to shift his residence from the building in the suit property so as to enable the second defendant to come back and reside with her. It is stated that on the basis of the said request, the plaintiff had shifted his residence temporarily from the building in the suit property. It is the case of the plaintiff that on 10.6.1998, the defendants attempted to cut and remove valuable trees in the suit property asserting independent title over the same. The suit was instituted in the circumstances, seeking an order of permanent prohibitory injunction restraining the defendants from committing waste in the suit property.

(2.) The defendants contested the suit. The stand taken by the defendants in the written statement is that the plaintiff was never in possession of the suit property and that the building in the suit property is one constructed by them. As regards Ext.X1(a) settlement deed, it was contended by the defendants that the same has been cancelled by them subsequently. The fact that a loan was availed by the plaintiff and first defendant jointly by mortgaging the suit property has been admitted by the defendants in the written statement. As regards the said transaction, it was contended by the defendants in the written statement that the plaintiff did not repay the loan and therefore, the first defendant had liquidated the said liability.

(3.) The trial court found that the plaintiff could not establish possession over the suit property and consequently dismissed the suit. The appellate court confirmed the aforesaid finding of the trial court and dismissed the appeal preferred by the plaintiff. The plaintiff is aggrieved by the decisions of the courts below.