SASIKALA Vs. WILSON D DOSS

JUDGEMENT

(1.) The Defendant is the Appellant. This Second Appeal is directed against the decree and judgment dated 24.07.2009 passed by the learned Subordinate Judge, Padmanabhapuram, in A. S. No. 57 of 2008, whereby the decree and judgment passed by the learned Principal District Munsif-cum-Judicial Magistrate, Eraniel in O. S. No. 190 of 2005 were set aside.

(2.) The Respondent herein was the Plaintiff and he filed the Suit as against the Appellant/Defendant for, recovery of suit property with past mesne profits of Rs. 7,500/ - and future mesne profits at the rate of Rs. 2,500/- per month from the date of the Suit till recovery of possession, stating that the suit property originally belonged to one Rajammal, who had three sons, by name, James Samuel, Jayachandra and Selvin Roy. Rajammal subsequently executed a Gift Deed dated 13.07.1985 and gifted the property to her three sons with buildings bearing separate door Nos. 21-113, 21-114 and 21-114A and reserved life interest till her death. It is further stated that even during her life time, the entire extent including the suit property was divided as 'A' B' and C plots and each plot has an extent of 750 sq. links. 'A' plot was allotted to the share of Selvin Roy, 'B' plot was allotted to the share of Jayachandra and 'C plot was allotted to the share of James Samuel. Subsequently, one of the sons, viz. , Jayachandra had purchased the share of James Samuel in and by a Sale Deed dated 14.01.2004. Further, the said Jayachandra was also demanding his another brother Selvin Roy to sell his share with building to him, but Selvin Roy was not amenable to the request of Jayachandra. In the meantime, Jayachandra removed the old structures in door Nos. 21-113 and 21-114 and erected a pucca two storey concrete building in 'B' and 'C' plots. Since his another brother Selvin Roy has refused to sell his property in order to create a problem, Jayachandra obtained a new electric service connection in the month of August 2004 by fabricating a Building Tax Receipt and fixed the Electric Meter in door No. 21-114-A, which belongs to Selvin Roy.

(3.) In the said situation, the Respondent/Plaintiff purchased 'A' plot allotted to Selvin Roy by a Sale Deed dated 08.08.2005. From the date of purchase, the Respondent has become the absolute owner of the suit property. After purchase, the Respondent came to know that since Selvin Roy, his vendor did not accede to the request of his brother Jayachandra, the said Jayachandra inducted the Appellant/Defendant in the suit property and she was also carrying on business dealing with tinker parts in the suit property. The Respondent requested the Appellant to vacate the premises and she has also agreed for the same. But, the Appellant filed a Suit in O. S. No. 126 of 2005 before the Principal District Munsif-cum-Judicial Magistrate Court Eraniel, for injunction restraining the Plaintiff, from disturbing her possession over the suit building. Hence, the Plaintiff had issued a suit notice on 29.09.2005 granting 30 days' time to surrender the suit property and the defendant sent a reply by making untenable allegations. Hence, the Plaintiff, filed the Suit for the reliefs stated supra.