BINU KRISHNAN Vs. CHELLAPPAN PILLAI

JUDGEMENT

(1.) THESE revisions under Sections 115 of the Code of Civil Procedure (for short, "the Code") and Petition under Article 227 of the Constitution arise from orders passed by the learned Additional Munsiff-II, Neyyattinkara on various applications preferred by the petitioners in the revisions in E.P. No.80 of 1979 in O.S. No.67 of 1957 of that court. Judgment debtors, aggrieved by the respective orders against them have filed the revisions while additional decree holder No.3 who is respondent No.1 in the revisions has filed W. P(C) No.28525 of 2010 aggrieved by that part of the order against him. Parties are referred to as petitioners (in the revisions) and respondent No.1 (petitioner in the Writ Petition).

(2.) PUNNAKKULATHU tarwad, in Neyyattinkara Taluk owned large extent of properties. While so, Easwara Pillai Krishna Pillai of the tarwad created mortgage over a plot of land called "Charivuvila Purayidom" comprised in Sy.No.478/1B and belonging to the said tarwad in favour of one Padmanabhan Ummini as per a registered document dated, 14.01.1095 M.E. (marked Ext.P9 in the Writ Petition) and described as an `Otti Kuzhikanam Adharam'. Though extent of the property mortgaged is not specified in the document it described the property by survey number and boundaries and in some of the later documents the extent is stated as 3.25 acres while in the survey conducted in the executing court the extent was found to be 3.12 acres. There were four Sakhas in the said tarwad and for enjoyment of properties by the different Sakhas there was a Sakha partition executed between the members of the tarwad in the year, 1099 M.E. The Sakha partition was in respect of properties excluding property covered by the registered mortgage deed dated, 14.01.1095 M.E. By that time the mortgagee expired. Two junior members of the tarwad instituted O.S. No.67 of 1957 in the court of learned Principal Munsiff, Neyyattinkara for redemption of mortgage arraying Ummini Nadar Kochappi Nadar, only son of the mortgagee as defendant No.1 and the then Karanavans of the four Sakhas as defendant Nos.2 to 5. The two junior members, plaintiffs in the suit pleaded that they instituted the suit since defendant Nos.2 to 5, Karanavans of the four Sakhas were not amenable to do so and that redemption is sought on behalf of the tarwad. Defendant Nos.2 to 5 did not contest the suit. Defendant No.1 hotly contested the suit raising various grounds but learned Munsiff granted a decree in the suit on March 17, 1959 (the terms of which will be adverted to later while considering contentions of parties). It is not disputed, that decree has become final. In the meantime there were several litigations initiated either by defendant No.1 or others as regards the mortgaged property and claiming right over it. There were also orders of injunction restraining the two junior members executing the decree in O.S. No.67 of 1957. After all those challenges came to an end the decree holders started execution of the decree for redemption in the year, 1961. The attempt to execute the decree was objected by defendant No.1 on the ground that in the meantime he got registry of the land from the Special Tahsildar for kandukrishi lands. That objection was upheld and the execution petition was dismissed which was confirmed in appeal. In the meantime plaintiff No.2-decree holder No.2 expired. Plaintiff No.1-decree holder No.1 filed S.A. No.846 of 1963 in this Court against defendant No.1-judgment debtor No.1. The Second Appeal was allowed as per judgment dated, July 4, 1967. Objection raised by defendant No.1 was overruled and this Court held that executing court as well as the first appellate court acted erroneously and illegally in refusing to execute the decree according to its tenor. In the meantime defendant No.1, only son of the mortgagee had gifted his right in the hypotheca to his sons - Krishnan Nadar and Kesavan Nadar (1.56 acres each) as per document No.3609 of 1965. The 1.56 acres gifted to Krishnan Nadar was towards west of the entire hypotheca while the eastern 1.56 acres was given to Kesavan Nadar. After the judgment dated July 4, 1967 in S.A. No.846 of 1963, plaintiff No.1- decree holder No.1 expired. While so Krishnan Nadar settled 50 cents (out of the 1.56 acres forming the western portion of the hypotheca) in favour his daughter, Anitha Krishnan as per settlement deed No.776 of 1996. The legal heirs of deceased decree holder No.1 assigned right to execute the decree (in O.S. No.67 of 1957) and their undivided right in the mortgaged property in favour of respondent No.1 as per assignment deed Nos.2840 and 2861 of 1997. On the strength of the said assignment deeds respondent No.1 sought impleadment in the execution petition - E.P. No.80 of 1979. That was objected by the judgment debtors which prevailed in the executing court. Respondent No.1 challenged that order in C.R.P. No.2700 of 1999. By order dated November 23, 1999 this Court allowed the revision and ordered impleadment of respondent No.1 as additional decree holder No.3 in E.P. No.80 of 1979. In the meantime Anitha Krishnan assigned the 50 cents she got as per settlement deed No.776 of 1996 in favour of petitioner in C.R.P. No.468 of 2010 as per document No.550 of 2001. The said 50 cents is described as situated towards south-western portion of the 1.56 acres which forms the western portion of the total extent of 3.12 acres (mortgaged property). Petitioner in C.R.P. No.468 of 2010 constructed buildings in the said 50 cents. Petitioners in C.R.P. Nos.466 and 478 are legal heirs of the deceased mortgagee.

(3.) IN the meantime Binu Krishnan executed various assignment deeds in respect of portions of the said 74 cents. Fifteen cents was assigned to the petitioner in C.R.P. No.468 of 2010 as per assignment deed No.1832/2010 dated 13.07.2010; thirty cents was assigned to the petitioner in C.R.P. No.466 of 2010 (he is also a legal heir of the deceased mortgagee) as per registered sale deed dated 14.07.2010 and another nine cents was assigned in favour of petitioners in C.R.P. No.478 of 2010 (who are also legal heirs of the deceased mortgagee) as per a registered assignment deed dated 16.07.2010. Thus out of the 74 cents which Binu Krishnan got as per document Nos.989 and 990 referred to above he assigned 54 cents in favour of petitioners in C.R.P. Nos.466, 468 and 478 of 2010. Binu Krishnan (petitioner in C.R.P. No.404 of 2010) has retained the remaining 20 cents. On the strength of the above assignment deeds Binu Krishnan (petitioner in C.R.P. No.404 of 2010) filed E.A. No.399 of 2010. He prayed for an order that he has right, title, interest and possession over the said 74 cents (notwithstanding that by that time he had assigned 54 cents out of 74 cents). Petitioner in CR.P. No.466 of 2010 filed E.A. No.709 of 2010 while petitioners in C.R.P. No.478 of 2010 filed E.A. Nos.625 and 712 of 2010. Petitioners in C.R.P. Nos.466, 468 and 478 claimed that since they have acquired undivided right of decree holder No.2, the co- mortgagor and they have also acquired either by assignment or by operation of law right of the mortgagor over the property there is fusion of right of mortgagor and mortgagee in them and hence they are not liable to be physically evicted from the suit property.