JUDGMENT

Dated this the 26th day of August, 2022 This appeal has been directed against the judgment and decree in A.S. No.36/2004 on the file of Subordinate Judge's Court, Neyyattinkara, which arose out of judgment and decree in O.S. No.94/2002 on the file of Principal Munsiff's Court, Neyyattinkara.

2. This is the second round of second appeal arising from O.S. No.94/2002. The defendants 1 and 2 are the appellants/plaintiffs and defendants 3 and 4 are the respondents (parties hereinafter be referred as per their status before the Trial Court). The suit is one for declaration of title, recovery possession and permanent prohibitory injunction. The plaint B schedule is a building situated in plaint A schedule property and which was obtained by the plaintiffs as per sale deed No.943/1978 executed by the mother of the first plaintiff. The mother was holding 16 cents of property including plaint A schedule under mortgage kuzhikanam deed of the year 1121 M.E. Thereafter, she obtained purchase certificate with respect to the property as per the proceedings in S.M. case No.263/1973. Parents of the first plaintiff put up plaint B schedule building and they were residing in that building. Subsequently, the brother of the first plaintiff was in occupation of the building. On 10.11.1983 in his absence father of defendants 1 to 3, Mr.Varghese trespassed into the plaint schedule property and started residing there. After that the father of defendants 1 to 3 instituted O.S. No.859/83 before the 1st Additional Munsiff’s Court, Neyyattinkara for declaration of title and recovery of possession. The first plaintiff and her mother were the defendants in that suit and they filed written statement along with counter claim. After trial, the suit was dismissed and counter claim was decreed by the trial court.

3. In appeal, the dismissal of the suit was confirmed but counter claim was dismissed, finding that it is not in proper form. The plaintiffs are in possession of plaint A schedule property. On 22.1.2002 the defendants attempted to grab a portion of plaint A schedule property and take possession of the same. Hence, the suit has been filed for declaration of title of plaint A schedule property and for recovery possession of plaint B schedule building and for consequential injunction.

4. Defendants 1 and 2 filed written statement contending that the suit is barred by resjudicata in view of the decision in O.S. No. 859/1983. The B schedule is not described in the plaint. The plaintiffs have no right title or interest in the plaint schedule property. The purchase certificate obtained in pursuance of S.M. Case No.263/1973 does not pertain to the plaint schedule property. It will not bind the defendants since they are not parties to that proceedings. The defendants have been residing in the old building in 4 cents of property comprised in resurvey No.292 in block No.25 corresponding to the old survey No.324/2/16. The defendants and their predecessors have been in absolute possession and enjoyment of the property and building for last more than 25 years openly, continuously and peacefully and denying the title of the plaintiffs. Thereby, they perfected title to the 4 cents of property and the building by adverse possession and limitation. So, the suit is barred by limitation, there was no cause of action for filing the suit.

5. Defendants 3 and 4 remained ex-parte. PW1 examined and Exts.A1 to A6 marked from the side of the plaintiffs. DW1 examined and Ext.B1 and B1(a) marked from the side of the defendants. Exts.C1 and C1(a) also were marked.

6. The learned Munsiff on appreciating the facts and law involved found that the decision in O.S. No.859/1983 will not operate as resjudicata, since the counter claim was dismissed in appeal on technical ground and not on adjudicating the case on merits. It is also found that the suit is not barred by limitation and accordingly the suit was decreed declaring the title of the plaintiffs and the recovery of possession w