HIGH COURT OF KERALA
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(1.) The defendants in O.S.No.895/1987 of the Munsiff Court, Kochi are the appellants. The suit is filed by the plaintiff for recovery of possession of plaint B schedule property with damages at the rate of Rs.20/- per mensum for use and occupation of the plaint schedule property. The case of the plaintiff is that plaint A schedule property was obtained by him as per document No.2155/65 of the Cochin Sub Registry office. Plaint B schedule property is the residential house situated in A schedule property. Eversince the sale deed, the plaintiff was in possession and enjoyment of the property. B schedule building originally belonged to one Ammu, who died on 11.1.1974 without leaving any heirs. The husband of the first defendant deceased Balan started residence in B Schedule house with his family, a few days prior to the death of the aforesaid Ammu without the knowledge and consent of the plaintiff. Since Ammu died without leaving any legal heirs, neither the deceased husband of the first defendant Balan or any of the defendants has got any right over B schedule property. The plaintiff had expressed her protest to Ammu and Balan regarding their residence. Deceased Balan, the husband of the first defendant, had filed O.A. No.1159/1972 before the Land Tribunal, Vypin claiming kudikidappu right and the same was dismissed. When deceased Balan attempted to renovate and repair B schedule house, the plaintiff filed O.S.No. 5907/76 for a decree of permanent injunction restraining him from renovating the building. The said suit was decreed but the defendants were allowed to thatch the house till they are evicted under due process of law. Subsequently deceased Balan and his brother Gopi jointly filed O.S. No.634/76 before the Munsiff Court for a permanent prohibitory injunction against the plaintiff herein and her husband alleging that they are the heirs of the kudikidappukari deceased Ammu. The question of kudikidappu was referred to the Land Tribunal, Vypin and the Land Tribunal negatived the right claimed by Balan and Gopi. But they were allowed to thatch B schedule house unless and until they are evicted under due process of law. Against the said judgment and decree, Balan and his brother preferred an appeal as A.S.No.120/79 before the Sub Court, Cochin and the appellate court dismissed the appeal. The second appeal filed from the judgment and decree as S.A. No.745/85 was also dismissed. Since the defendants are not kudikidappukars in B schedule property, they have no manner of right or title or interest over A schedule property and they are liable to be evicted from B schedule with damages at the rate of 20/- per mensem for unauthorised use and occupation. Even after repeated requests, they did not surrender possession of the building. The first defendant filed O.S. No.767/87 against the plaintiff and her husband Karunakaran. Further the first defendant filed O.A. No.217/87 before the Land Tribunal, Vypin for purchase of kudikidappu. The said application also was dismissed. Hence the suit filed for recovery of possession of B schedule property with damages for use and occupation at the rate of Rs.20/- per mensem.
(2.) The first defendant alone has filed written statement. When the plaintiff tried to evict the defendants unlawfully from plaint B schedule house, the first defendant filed O.S. No.767/87 against the plaintiff and the present suit was filed as a counter blast of the suit O.S. No.767/87. The first defendant is residing in B schedule house for the last 30 years. Defendants 1, 3 and 4 were not parties to the earlier proceedings. Deceased Ammu was the sister of the mother inlaw of the 1st defendant. Husband of the first defendant, 2nd defendant and 2nd defendants father were living together along with Ammu for the late kudikidappukari. The kudikidappu right of the above said Balan and Viswambaran devolved upon the defendants and accordingly they are residing in the B schedule property as kudikidappukars. The allegation that the defendants and deceased Balan resided in plaint B schedule property a few days prior to the death of Ammu is denied. Long before the death of Ammu, Balan and Viswambaran along with their mother were residing in the plaint schedule property and the plaintiff has not expressed any objection regarding their residence. Ammu died issueless. But Balan and Viswambaran are the children of Ammus sister. With regard to the O.A. filed by Balan and Gopi, these defendants have no knowledge. The plaintiff has no right to evict the defendants from B schedule property. They have no other homestead or hut to reside. They are not liable to surrender B schedule property. The plaintiff is not entitled to get damages as claimed in the plaint.
(3.) On the basis of the pleadings, the Trial Court framed four issues. The Trial Court passed a decree to evict the defendants from B schedule house and recover possession of the same. The claim for damages for use and occupation of B schedule house by the defendants is disallowed. Against the said judgment and decree, the defendants filed A.S. No. 32/1990 before the first appellate Court. The first appellate court dismissed the appeal. Against which this Second Appeal is preferred by the defendants.;
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