CHAMIAR KUNCHELAN Vs. KANDAN DAMODARAN

JUDGEMENT

(1.) This Civil Revision Petition arises out of an application in the lower court under O.1, R.10, Civil Procedure Code, for impleading the Petitioner as supplemental 4th defendant in the suit. The lower court dismissed the application and hence the Revision.

(2.) The suit is for arrears of Purappad based on a Karipanaya Kychit, defendants 1 & 2 being the Original mortgagees and the 3rd defendant the assignee from them. The 3rd defendant, the main contesting defendant, pleaded that the suit transaction was not a mortgage but a Kanom and hence the suit was liable to be stayed under Kerala Act I of 1957.

(3.) The Petitioner, who is the younger brother of the 3rd defendant, filed I. A. No. 2908 of 1952, out of which the present Civil Revision Petition arises, alleging that the assignment of the Kanom right (according to him also the suit transaction was a Kanom and not a mortgage) in favour of the 3rd defendant was obtained for and on behalf of the family by their father, that by a subsequent partition one half of the property was given possession to him by the father and that he, the petitioner, has been in possession and enjoyment of his share ever since the partition. The plaintiff did not oppose the application, though he did not admit the petitioners contention that he was entitled to a half share in the properties. The 3rd defendant opposed the application, but in his counter he stated that the petitioner was in actual possession of a portion of the properties as a trespasser and that there was a suit already pending for evicting the petitioner therefrom.