CHACKO Vs. JANAKI KUNJAMMA

JUDGEMENT

(1.) This second appeal arises from a suit for redemption of a mortgage. The contentions of the parties are stated in paragraphs 1 and 2 of the judgment of the lower appellate court, and the same are extracted below:

(2.) The point raised in the memorandum of cross objections may be considered first. The courts below have found that the whole of items 1 and 2 were included in the mortgage Ext. A and this finding is based on satisfactory evidence such as the identity of boundaries in Exts. A and B, etc., referred to by the courts below. This being a question of fact, the concurrent finding must be confirmed.

(3.) This leaves only one question for decision, namely, whether the registry evidenced by Ext. II enures to the benefit of the mortgagor. It is necessary to refer to the Settlement proceedings in this connection. Ext. K is copy of the proceeding which terminated on 15-2-1077. Narayanan Govindan of Agasthanathu tarwad applied for patta for the chrikkals comprised in lekkoms 163 and 165, i. e., the property included in the mortgage. Narayanan Sankaran of Chirakkal tarwad was examined in the enquiry on 14-12-1076. He admitted that the two cherikkals, Kunnathumala and Vadayanamattom, were obtained from Agasthanathu tarward under the kanapattom deed of 1043 (Ext. A in this case) and that he had no objection to the grant of patta to the applicant, Narayanan Govindan. The Settlement Supervisor's decision was that survey Nos. 274/1, 275/1A and two other survey numbers in some other cherikkals with which we are not concerned in this suit were pandaravaka karanpattom comprised in the two lekkoms, that the persons in possession were holding the same under kanapattom from the tarwad of the applicant and that patta should be granted to the applicant. Soon after this decision Chirakkal tarwad partitioned their properties including these properties, under Ext. B on 7-8-1078 stating that the properties were obtained from Agasthanathu tarwad. The boundaries in Ext. B tally with those in Ext. A. Thereafter on 24-4-1081 one Sankaran Narayanan of Chirakkal tarwad filed a petition Ext. J before the settlement authorities stating that one half of the two cherikkals was allotted to him in the family partition, that patta for the excess lands, i. e., lands not already registered should be given either to the Jenmi, i. e., Agasthanathu tarwad, or to himself and that he was obliged to file the petition as the classifier had prepared ozhuku in respect of such land in favour of Sankaran Kumaran and Sankaran Neelacantan belonging to another branch of Chirakkal tarwad. Sankaran Narayanan was thus seeking registry as a person in possession under Agasthanathu tarwad and he had no dispute regarding the title of Agasthanathu tarwad. Ext. II is a copy of the decision regarding this. It appears from Ext. II that one Narayanan Kesavan of Agasthanathu tarwad was the applicant. Sankaran Neelakantan about whom complaint was made by Sankaran in Ext. J. deposed admitting that the lands involved in the case were in lekkoms 163 and 165. The position taken by him was that the land was included in the mortgage obtained from Agasthanathu tarwad, that according to the ozhuku there was an excess area in these chirakkals and that patta for half of such excess should be given to him. The Assistant Settlement Peishkar decided that lekkoms 163 and 165 should be located in the south of survey No. 274/1 and that registry of half the excess area should be given to Sankaran Neelakantan and Sankaran Velayudhan and half to Sankaran Narayanan. This decision was carried out and patta was issued to the persons mentioned above. The question for decision is whether this registry enures to the mortgagor or whether the same put an end to the mortgagor's title.