PAULOSE Vs. THOMAS

JUDGEMENT

(1.) The first defendant is the appellant. The plaintiff his brother filed the suit originally for an injunction restraining the first defendant form entering the plaint schedule property a shop room held on tenancy under the father of DW 2. Subsequently the plaintiff amended the plaint and sought recovery of possession on the strength of his possession as lessee and also on the basis of his right as a lessee. The first defendant resisted the suit contending that he was himself the lessee and not the plaintiff and the second defendant as claimed by the plaintiff. The trial court dismissed the suit upholding the plea of the first defendant. The lower appellate court negatived the plea of the first defendant and granted to plaintiff a decree for recovery of possession with menses profits. This is what is challenges by the first defendant in this Second Appeal.

(2.) When this second Appeal came up for admission it was found that the sole respondent in this Second Appeal had filed a caveat. Since a caveat had been filed the matter was adjourned for more elaborate arguments. The matter was again posted today and both counsel were heard. Counsel had copies of the necessary documents and copies of the depositions of the witnesses and that were made available for perusal.

(3.) The plaintiff came forward with the suit contending that himself and the second defendant took the building on lease form the landlord on 1.10.1965. The landlord is admittedly no more and his son was examined in this case as DW 2. According to the plaintiff second defendant joined the lease only to secure transaction of lease between himself and the landlord. The first defendant is the elder brother of the plaintiff. According to the plaintiff the first defendant who after he had left his employment elsewhere was assisting the plaintiff in the business that was being carried on in the premises was asserting independent rights over the building and this had resulted in the plaintiff having to seek the relief of injunction restraining the first defendant form interfering with possession of the plaintiff over the plaint schedule property. It is seen that the plaintiff did not get an interim order of injunction and prompted by the observations of the lower appellate court in the Civil Miscellaneous Appeal arising form the application for injunction, the plaintiff amended the plaint, inserted paragraph 4A therein and the prayer for recovery of possession form the first defendant. The case of the first defendant was that though the lease deed was executed by the plaintiff or the defendant had no right or possession over the premises and the premises had always been in the possession of the first defendant as a lessee. The first defendant therefore contended that the plaintiff was not entitled to recover possession of the plaint schedule room either on the strength of his title as lessee or on the strength of his prior possession. The second defendant who according to the plaintiff had also found the execution of the lease deed in favours of the landlord did not appeal in the suit and he was set exparte though he came forward and gave evidence in the suit as DW 3. The trial court held that even though the lease deed was executed by the plaintiff and defendant No. 2 in favour of the landlord, the first defendant had succeeded in establishing that he it was who was always in possession of the premises as the lessee and the plaintiff was not in possession of the building as a lessee. The trail Court therefore held that the plaintiff was not entitled to a decree or injunction. Regarding the claim for recovery of possession, the trial Court dealt with the suit only on the basis that the plaintiff had claimed only a possessory title and since the plaintiff had failed to establish that he was in possession of the premises earlier and had been disposed by the first defendant, the plaintiff would not be entitled to a decree for recovery of possession. It is not seen that the trail Court had dealt with the claim of the plaintiff for recovery of possession on the strength of his title as a lessee. The trial court dismissed the suit. On appeal by the plaintiff, the lower appellate Court held that in the face of the admission of the first defendant that the lease deed was executed by the plaintiff and the second defendant and in the light of the other evidence in the case it cannot but be held that the lessee of the premises was the plaintiff and the second defendant and not the first defendant. The appellate Court on a reappraisal of the evidence held that the plaintiff was in possession of the building as a lessee earlier and the first defendant having no independent right or any right to resist the claim for eviction by the plaintiff, the plaintiff was entitled to a decree for recovery of possession. In that view the appellate Court granted a decree to the plaintiff for recovery of with mesne profits form the date of suit. This is what is challenged by the first defendant before me.