Possession must be lawful; unauthorized occupation does not confer possessory rights.

JUDGMENT

The defendants concurrently non-suited by the courts below in a suit for recovery of possession and damages have come up in this appeal. The plaintiff sued the appellants/defendants on the strength of a title in the Sale Deed No.317/2004. There were two buildings which was in occupation of the defendants.

2. The plaintiff also claimed that from

07.12.2002 onwards they are in wrongful occupation and they are liable to pay a sum of Rs.1,000/- per month as user and occupation charges. The defendants resisted the suit by contending that the plaintiff is not entitled to any relief and that the schedule property belonged to one Pappu Thekkumthala, who is the predecessor of the defendants who took the property on rent, 70 years back. It was also pointed out that the plaintiff is the daughter-in-law of one P.P.Antony who filed O.S.No.1976/2002, which was withdrawn without liberty to file a fresh suit and therefore there is an abandonment of the suit and the present suit is barred under the provisions of law.

3. The trial court, on an appreciation of the oral and documentary evidence, came into conclusion that the plaintiff has proved the title and the defendants have failed to establish any rival title over the property, much less a claim for kudikidappu, which was sought to be referred under Section 125 (3) of the Kerala Land Reforms Act , 1963 and that the said application having been rejected on finding that there cannot be any kudikidappu over a portion of the building. The trial court, thus concluded that since no case for tenancy was set up under the provisions of the Kerala Buildings (Lease and Rent Control) Act , 1965, the possession of the defendants are unauthorised and therefore allowed recovery of plaint B schedule property on the strength of title. Aggrieved, the defendants preferred an appeal before the I Additional District Court, Ernakulam, as A.S.No.405/2009, which was dismissed by judgment dated 25.01.2012. Hence, the present appeal.

4. This Court on 07.03.2013 framed the following substantial questions of law for consideration:

(i) Did the courts below go wrong in holding that the suit O.S. No.1051/2004 is not hit by proviso to Order 23 Rule 1 of C.P.C., since earlier suit O.S. No. 1976/2002 was withdrawn without seeking leave of the court to file a fresh suit?

ii. Since O.S. No.254/1990, filed by the plaintiff's predecessor-in-interest for recovery of possession on the strength of title, was dismissed for default and when restoration petition was also dismissed, is not the plaintiff bound by the dismissal of the earlier suit?

iii. Whether the plaintiff’s suit for recovery of possession is barred by adverse possession and limitation?

5. Heard Sri.P.Vijayakumar, the learned counsel appearing for the appellants and Sri.A.Rajagopalan, the learned counsel appearing for the respondent.

6. The learned counsel appearing for the appellants pointed out that the findings of the court below that the suit is maintainable and is not barred under Order XXIII Rule 1 of the Code of Civil Procedure , cannot be sustained. A perusal of Ext.B11 order would show that though liberty was sought for by the plaintiff, having opposed the said plea, the trial court allowed the plaintiff to withdraw the suit without any liberty and therefore, the present suit is barred under Order XXIII Rule 1 of the . It is also pointed out that even assuming the present suit is maintainable, the same is barred by limitation and therefore the decree passed is unsustainable.

7. Per contra, the learned counsel appearing for the respondent/plaintiff countered the submissions of the learned counsel for the appellants and conten