VARGHESE CHERIAN Vs. OUSEPH KORATHU

JUDGEMENT

(1.) 1st defendant is the appellant. The suit property was mortgaged by one Cherukara tarwad in favour of the 1st defendant as per Ext. B dated 18-11-1096. The mortgage deed comprised of 4 items of property and separate amounts were advanced on security of each of these items. Item 4 of the mortgage-holding has been assigned to a stranger by the mortgagee. One half of item 1 and item 3 were assigned by the 1st defendant in favour of his brother who is impleaded in this case as the 2nd defendant by Ext. 1 partition deed between them. One half of item 1 and item 2 were retained by the 1st defendant and this suit is for redemption of Ext. B mortgage so far as the properties retained by the 1st defendant are concerned. The plaintiff claims his title to redeem as per Ext. A sale deed which he has obtained from the mortgagor tarwad. The suit has been decreed concurrently by the courts below and in this Second Appeal four questions are raised namely:

(2.) The deed of partition Ext. I was read in extenso at the Bar. Item I is 345 cents in extent. Of this, 172 1/2 cents have been assigned to the 2nd defendant as per Ext. I. In describing the portion retained by the 1st defendant, it has been stated that such portion is 172 1/2 cents in extent with 5 cents at its north which is in the form of a chira. The contention of the learned counsel for the appellant is that this five cents must be construed as in excess of 172 1/2 cents otherwise stated in the allotment. It is not contended that the description of the area of the entire item as 345 cents is incorrect. If so, after having allotted 172 1/2 cents to the 2nd defendant, there can only be another 172 1/2 cents that can be retained by the 1st defendant. 1 agree with the concurrent findings of the courts below that the chira of 5 cents mentioned in the portion retained by the 1st defendant is part of the 172 1/2 cents retained by him at the south of item 1 of the mortgage holding and therefore the apportionment of the mortgage amount made by the courts below is also correct.

(3.) This suit was instituted on 25-10-1121. There was no contention taken at any time by the 1st defendant that the original mortgagors, in Whom the right to the trees mentioned in Ext. A have been retained, also should be made parties to the suit because the equity of redemption with regard to those trees can only be represented by them. A contention of non joinder of partis, under O.1, R.9, C.P.C ought to be taken before the settlement of issues in the case. Such a contention has not been taken in proper time. It cannot now be entertained as a fresh plea in the Second Appeal. This contention has not been taken even in the memorandum of appeal here but is sought to be advanced by a separate application to amend the memorandum and I have dismissed that to-day by a separate order.