M.J. John @ Lalappan vs Antony Mathew M

T.R. Ravi, J

The appeal has been filed by the defendants 2 to 6 in O.S. No.20/2011 on the files of Sub Court, Alappuzha. The suit was filed for a decree of mandatory injunction and a permanent prohibitory injunction. The plaintiff/1st respondent claimed right over the plaint schedule property as per Ext.A1 settlement deed. The plaintiff's father is stated to have permitted his relative one Ousepachen to occupy the house on condition that he would vacate as and when required. The appellants are claiming under the said Ousepachan.

The trial court decreed the suit. The appeal filed before the District Court, Alappuzha has also been dismissed. The second appeal has been filed contending that the Courts ought to have found that the defendants are cultivating tenants. It is also contended that when it is shown that the plaintiffs are in possession, the Court below ought not to have granted a decree for mandatory injunction and prohibitory injunction. The counsel for the appellants submitted that the property was held under a lease from the father of the plaintiff. Even though evidence was sought to be adduced through the plaintiff's brother who deposed in those lines, the Court found that there are disputes between the brothers and the said evidence cannot be considered, as it is tendered with vested interest. The question of tenancy had been referred to the Land Tribunal and the Land Tribunal had also held against the tenancy. In such circumstances, no interference is warranted against the well considered judgment of the trial court and the appellate court. The appeal fails and is dismissed.

When the judgment was being dictated, the counsel for the appellants prayed that the appellants who are in possession of the plaint scheduled properties may be given some time to vacate the premises. The counsel for the 1st respondent submitted that the property was required for launching a hotel project and for the past more than 12 years, the 1st respondent has been waiting for getting delivery of the property. However, the counsel fairly submitted that a reasonable time can be granted to the appellants to vacate the premises. In the above circumstances, while dismissing the second appeal, it is directed that the delivery of the property shall be kept in abeyance for a period of six months from today, on condition that the appellants file an affidavit before the Execution Court undertaking to give vacant possession of the property on or before 16.12.2023. The affidavit shall be filed within 10 days from today.