The defendant in the original suit is in appeal. The respondent approached the trial court for a mandatory injunction alleging as follows: 2. A partition with respect to certain properties was effected between the plaintiff, the defendants and others as per Document No.357/1973 of the Mathamangalam Sub Registry Office. Item No.2 in A- schedule of the Partition Deed is the plaint schedule property. A-schedule property in the partition deed together with the house therein was set apart to the share of executants 1,3 and 7. The right to reside in the house and to use the well was reserved to executants 2,4, 5 and 6. The plaintiff/respondent is executant No.4 and the defendant was executant No.7. Executants 2,5 and 6 are residing separately. The plaintiff resides away from the plaint schedule property. However, he has properties adjacent to the plaint schedule property and, therefore, he used to reside in the house in the suit property occasionally. As there was an attempt on the part of the appellant/defendant to demolish the house in the suit property, a lawyer's notice was sent by the plaintiff to the defendant which was replied against by the defendant contending that the right of executant Nos.1 and 2 were obtained by her as per a registered document and claimed exclusive title over the plaint schedule property. The plaintiff alleged that the house in the property was demolished without his knowledge. In the suit which originally stood the prayer was for a mandatory injunction to re-construct the house.
3. The appellant/defendant who resisted the suit contended that the old house in the plaint schedule property is not in existence and the present house is constructed by the defendant. The old house became dilapidated and the plaintiff knew about this. After the collapse of the old house, the defendant had to construct a new house. Since the old house is not in existence, the right of the plaintiff to reside in the said house also ceased to exist. Executants 1 and 3 of the partition deed have released their right in the suit property in favour of the defendant by two separate documents of 1976 and 1982. Plaint-C schedule property set apart to the share of the plaintiff was assigned to the defendant by another document of 1976. Thus, the defendant contended that the plaintiff does not have any right or possession over the plaint schedule property. She asserted that the limited right of the plaintiff got extinguished on account of the collapse of the house.
4. The respondent/plaintiff subsequently amended the plaint deleting the prayer for mandatory injunction to reconstruct the house. In substitution of that, the prayer for restraining the defendant from obstructing the plaintiff's right to reside in the re-constructed house was incorporated. To the amended plaint, the defendant filed an additional written statement denying the averments.
5. The trial court after raising proper issues for trial, permitted both sides to adduce their evidence. At trial, PW1 was examined and Exts.A1 to A7 and B1 to B5 were marked.
6. The trial court, after considering the evidence dismissed the suit. The plaintiff took the matter in appeal. The lower appellate court, after re-appreciating the evidence, granted a decree as prayed for. It is with this background, the defendant has come up with this appeal.
7. Though notice was served on the respondent/plaintiff, he did not turn up.
8. The limited question to be answered in this appeal is whether the right of the respondent to reside in the tharwadu house got extinguished on account of the destruction/demolishion of the said house?
9. I have heard the learned counsel for the appellant and I have perused the records.
10. The stipulation with regard to the right of residence of the respondent in the suit property ought to have been read in the context of partition and allotment of shares to different individuals. There was an enquiry in this direction by the trial court while considering the evidence which was branded as 'extraneous' by the appellate court. In the absence of such enquiry, the true purport of the stipulation regarding the creation of life interest could not be gathered. Therefore, the reasoning in paragraph-11 of the judgment passed by the lower appellate court is incorrect and unsustainable; so submitted the learned counsel for the appellant.
11. Ext.A1 is the partition deed which is admitted by the defendants. Now, it is the common case of both sides that the building which existed on the date of execution of Ext.A1 does not exist any longer. While the plaintiff alleges that it was destroyed by the appellant, the appellant would contend that it was an ameliorating waste. As the house collapsed on account of old age, he had to construct a new house; so contended the appellant.
12. The main intention of the executants of Ext.A1 partition deed was to set apart the house to the mother of the plaintiff and the defendant, along with the defendant and her sister jointly, for facilitating residence of the plaintiff in the house where the mother resides. The further purpose was to enable the executants to look after the respective properties set apart to them which was adjacent to the tharawad house. Therefore, the trial court examined the question as to whether the said necessities still survive despite the lapse of time from the date of execution of Ext.A1. Admittedly, the mother of the parties is no more. By documents of 1976, the right of the mother was released to the appellant. Similarly, Executant No.3 in the partition Deed also released her right in favour of the appellant in the year 1982. These are admitted by the plaintiff in cross examination. Therefore, there cannot be any dispute that the appellant became the owner of the plaint schedule property and the house therein. Executant No.5 in the partition deed also released his right in favour of the defendant. It appears from record that the plaintiff has his own house at another place. Therefore, it is unimaginable that the plaintiff had any necessity to come to the suit property and to reside in the property just to enjoy mere residence. It is crucial to note that the plaintiff while examined as PW1 has admitted that C-schedule property allotted to him as per Ext.P1 was also alienated by him. Therefore, he cannot have a case that he needs to reside in the house for looking after the said property. The trial court rightly found that the intention stated in the partition deed does not survive after the lapse of 20 years or more.
13. The case of the respondent that the same was demolished by the appellant on the new year day of 2001 was disbelieved by the trial court. The non-examination of the witness to prove the existence and demolishion of the old house were taken note of by the trial court. Evidently, the new house is constructed using the money of the appellant. It cannot be said that after the construction of the new house, the right of residence of the plaintiff in the old house would revive.
14. The finding of the trial court on the basis of the intention behind the stipulation regarding the limited right of residence in the partition deed was not accepted by the lower appellate court. The non-
examination of any witness on the part of the defendants was a reason for the lower appellate court for holding that the defendant's case regarding the collapse of the house is not accepted. However, on a reading of the trial court judgment, it can be seen that the appellant is an old lady whose hearing capacity is impaired and therefore, she has chosen not to enter the witness box and to give evidence.
15. The admitted fact that the present house was constructed by the appellant utilising his own funds is another justifiable reason to non-suit the plaintiff. The enquiry conducted by the trial court was not an extraneous one. It is too idle to think that the appellant had demolished the old house just to deny the right of residence of the respondent. It is in evidence that the house was more than sixty years old. When a new house was constructed, there cannot be any recurrence of the life interest or limited right of residence. By the collapse of the house, the limited right or life interest got extinguished. Since the cause of action is essentially the alleged demolishion of the house which could not have been taken place within a day or two, there was no impediment for the plaintiff to take out a commission and to establish his case. As this was done, the only presumption that could be drawn is that the building collapsed due to the old age and the finding to that effect by the trial court ought to have been upheld by the lower appellate court.
16. Therefore, the first appellate court was not justified in decreeing the suit enabling the respondent to fasten his claim of life interest over the newly constructed building of the appellant. As the respondent has not proved by convincing evidence that the old building was demolished by the appellant and was not a natural collapse due to old age, the decree granted by the lower appellate court is not legally sustainable.
17. On a consideration of the entire materials now placed on record, this Court is of the view that the appellant is entitled to succeed.
In the result, the appeal is allowed. The judgment of the lower appellate court is set aside and the judgment and decree of the trial court dismissing the original suit is upheld.
Sd/- A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE