EACHAMPI THEVI Vs. VARIAVAN SARASWATHI

JUDGEMENT

(1.) DEFENDANTS 1 to 3 and 5 to 9 are the appellants in the second appeal arising out of a suit for redemption.The property concerned scheduled to the plaint is 1 acre and 1 cent of land.One acre 48 cents of land which takes in the plaint property belonged to Keezhmannadi tarwad.This was mortgaged by the tarwad as per Ext.P -1 mortgage deed of 10th Dhanu 1045 M.E.Two junior members of the tarwad obtained possession of the property as per Ext.P -2 which is termed as "Arthapattuseetti " ;,dated 7th Midhunam 1061 M.E.executed by the mortgagee.Defendants 1 to 9 obtained right over 48 cents of land by inheritance and they are in possession.The 10th respondent obtained the right over 53 cents.

(2.) PLAINTIFFS sued for partial redemption of Ext.P -1 mortgage and for recovery of possession of the land in the possession of defendants 1 to 10.Their claim was based on the partition of the properties belonging to the mortgagor tarwad of which they are members.They obtained,according to them,equity of redemption as per Ext.P -1 and therefore they are entitled to redeem.Defendants 1 to 9 contested the suit.According to them,they are in possession of the property as full owners and the right to redeem Ext.P -1 mortgage was barred by limitation.Pending trial of the suit,the Kerala Land Reforms(Amendment)Act,1969(Act 35 of 1969)came into force.Defendants 1 to 9 raised the plea that by virtue of the provisions of Act 1 of 1964 as amended,they are tenants entitled to fixity of tenure and therefore the suit was liable to be dismissed.

(3.) BEFORE we go into the plea raised is this appeal,it is necessary to look into how the courts below have disposed of the matter.The Munsiff had first passed a preliminary decree on 7th March 1970 allowing the plaintiffs to redeem 53 cents out of the plaint property in the possession of the 10th defendant and disallowing redemption as regards the 48 cents in the possession of defendants 1 to 9 on the ground that they have become deemed tenants by virtue of the provisions contained in S.4A(1)of Act 1 of 1964 as amended by Act 35 of 1969.An appeal was filed in the matter as A.S.No.151 of 1970.In appeal,the decree of the Munsiff's Court disallowing the prayer of plaintiffs for redemption and recovery of possession of the portion of the plaint property in the possession of defendants 1 to 9 was set aside and the Munsiff's Court was directed to pass a fresh decree relating to that portion.It was made clear in the appellate judgment that the preliminary decree for redemption already passed with respect to the property in the possession of the 10th defendant is left in tact.The 10th defendant had earlier filed an application to set aside the decree which was passed against him,it was dismissed by the trial court as well as the appellate court and also in revision by this Court(in C.R.P.No.5 of 1972 ).Thus the preliminary decree passed against the 10th defendant whose legal representatives are defendants 11 to 22 has become final.During the pendency of A.S.No.151 of 1970,the 4th defendant died and defendants 1,2,3 and 5 to 9 were recovered as his legal representatives.