APPAT VADAKKEKARA MAMMED Vs. ABDUL RAZAK

JUDGEMENT

(1.) The plaintiffs received a decree from the trial court for possession of the plaint schedule properties. The appeal against the decree filed by defendants 1 and 2 met dismissal. The 1st defendant has come in second appeal.

(2.) The case of the plaintiffs is stated below : Certain properties including the plaint schedule properties belonged to the grandfather of the plaintiffs. After the death of the grandfather, his properties were partitioned under Ext A7 by his heirs. The plaint schedule properties were allotted to the share of the father of the plaintiffs. The plaintiffs inherited the properties as the heirs of their father. One Avarankutty was the commercial lessee of the suit properties held under Ext A1 lease deed executed in 1928. The lease was granted to him for construction of a building and not for cultivation. Defendants 2 and 1 are respectively the daughter and grandson of Avarankutty. Plaint item 1 property is in the possession of the first defendant and item 2 is in the possession of the second defendant. The plaintiffs issued notice under Sec.106 of the Transfer of Property Act (for short, the TP Act) terminating the tenancy. The defendants have no right to continue in possession of the suit properties. There is no building therein now.

(3.) The third defendant did not contest the suit. Defendants 1 and 2 had the following contentions : The lease in favour of Avarankutty was an agricultural lease for cultivation and not a commercial lease. The leasehold property measured five cents. Avarankutty effected agricultural improvements and constructed a shop room in the leasehold property. After him, a partition deed was executed in 1973 and plaint item No.1 was allotted to the father of the first defendant and item 2 to the second defendant. The father of the first defendant obtained certificate of purchase from the land tribunal in respect of plaint item No.1. After the death of the father of the first defendant, the properties held by him were partitioned in 2004 under a registered partition deed. The plaint item No.1 property was allotted to the share of the first defendant. He applied to the panchayat for permit to construct a new building and submitted a plan for approval. The suit is filed to prevent the first defendant from constructing the proposed building.