Kerala High Court
Ramachandran Nair vs Sukumaran Nair on 3 September, 2002
Equivalent citations: AIR 2002 KERALA 394, (2003) 1 ALLINDCAS 659 (KER) (2002) 3 KER LT 322, (2002) 3 KER LT 322
JUDGMENT R. Bhaskaran, J.
1. This is an appeal by the defendant in a suit for recovery of possession on the strength of title. The plaint schedule property belonged to the mother of plaintiff and defendant. It was settled in favour of the plaintiff as per document No. 2509 dated 18.7.1977 executed by the mother. The document had reserved the right of the mother to reside in the building till her death and to take income from the property. The mother died on 2.8.1997. According to the plaintiff, though the mother subsequently cancelled the settlement deed, the cancellation was found to be invalid as per the decree in O.S. No. 509 of 1986 filed by the plaintiff against the mother and the defendant. After the death of the mother, the plaintiff demanded the defendant to vacate the building. Since he refused to do so, the suit was filed. The defendant filed a written statement contending that the plaintiff had not prayed for vacating the building in O.S. No. 509 of 1986 and the settlement deed No. 2509/77 had not come into effect as the same was subsequently cancelled. The plaintiff has not derived any title under the settlement deed. It was also contended that the title if any of the plaintiff was barred by adverse possession and limitation.
2. The trial court found that the contention of the defendant based on Order 2 Rule 2 of the Code of Civil Procedure on the ground that the plaintiff had not claimed recovery of possession in the earlier suit cannot be sustained as the mother had reserved her right to reside in the building and to take usufructs and therefore the plaintiff could not have prayed for recovery of possession in that suit. The trial court found that the earlier settlement deed had come into effect as the plaintiff had effected mutation and remitted tax as evidenced by Exts. A2 and A7 and building tax as evidenced by Exts. A3 and A6. The title of the plaintiff was declared in Ext. A5 suit. The evidence of PWs. 1 and 2 were relied on by the trial court. Admittedly, the judgment in Ext. A5 has become final. The present defendant remained ex pane in that suit.
3. The case of adverse possession and limitation was also found to be unsustainable as the defendant had not adduced any evidence to show that he kept possession of the property adverse to the interest of the plaintiff. In fact the only document by him was the ration card and voters list. The lower appellate court has confirmed the findings of the trial court.
4. In this second appeal, the learned counsel for the appellant submitted that the suit should have been dismissed as barred by Order 2 Rule 2 of the Code as no relief of recovery of possession was claimed in the earlier suit. It was also contended that the defendant has perfected title by adverse possession and limitation. The appellant has also framed a question of law as to whether the settlement deed is a trust as contemplated under the Indian Trusts Act and whether the cancellation of the settlement deed is revocation of trust as the person in whose favour the property was settled commits breach of trust by failing to look after the welfare of the settlor. The question based on the settlement deed being treated as a trust is a question newly raised in second appeal and without any foundation in the pleadings and evidence and without the contention taken in the courts below, I do not think that it is necessary to go into that question in second appeal. There is also the bar of jurisdiction as this contention was not taken in the earlier suit.
5. As already noticed by the courts below, the suit is not hit by Order 2 Rule 2 as in the earlier suit the plaintiff did not raise a relief or recovery of possession from the mother as the mother was entitled to reside in the building and to take the income. It is true that a mere suit for declaration of title without any prayer for consequential relief is not maintainable if the plaintiff was entitled to seek for further relief in that suit. But there are cases where the plaintiff could seek only the declaration to get rid of the cloud on the title of the plaintiff when no further relief was possible to be asked in such suits. This position is well settled by the decision of the Supreme Court in Deo Kuer v. Sheo Prasad (AIR 1966 SC 359). The defendant was none other than the brother of the plaintiff and was residing with the mother. It cannot be said that the defendant was having any independent possession to compel the plaintiff to seek a prayer for recovery of possession in the earlier suit.
6. Similar is the case with regard to the plea of adverse possession and limitation. There is absolutely no evidence produced to show that the defendant was having at any time independent possession of the property adverse to the interest of the plaintiff. In fact the mother died only in the year 1997 and the present suit was filed in 1998. The finding on the question of adverse possession CM the basis of appreciation of evidence by the courts below cannot be interfered with without any sufficient ground in second appeal.
7. The learned counsel for the appellant submitted that the appellant is only a headload worker and under the settlement deed the plaintiff has been given major portion of the property and the defendant is given too negligible an extent of land and therefore the question requires reconsideration by this Court. Inasmuch as the validity of the settlement deed is already settled in O.S. No. 509 of 1986, I do not think that it is proper for this Court to admit the second appeal in the second round of litigation. Learned counsel for the appellant sought six months' time to vacate the building. Taking into account the relationship of the parties, I dispose of the appeal by granting four months' time from today to the defendant to vacate the building on condition that he gives an undertaking within two weeks from today to the trial court that he will unconditionally vacate the building and the plaint schedule property at the expiry of the said four months. If such an undertaking is filed the delivery of the property will be adjourned by four months from today.
Second Appeal is disposed of as above.