B MADHAVI AMMA Vs. K KARUNAKARAN NAIR

JUDGEMENT

(1.) Plaintiffs in a suit for redemption, O.S. No. 122/84 on the file of the Additional Munsiff's Court, Nedumangad are the appellants. Both the courts below have negatived their claim for redemption of the suit property, finding merit in the contentions taken by the respondent/defendant denying the mortgage, and of claiming anterior possessory right over the suit property, more than a decade before the alleged mortgage, by way of trespass, with a further plea of prescribing title over the same by adverse possession. Before the lower appellate court, the plaintiff had moved an application for amending the plaint to seek an alternative relief for recovery of possession on the strength of their title, but that was also turned down as belated while dismissing their appeal, and confirming the dismissal of the suit by the trial court. Short facts necessary for consideration of the substantial questions of law raised for disposal of the appeal can be summed up thus:

(2.) The defendant resisted the suit claim disputing the mortgage (Ext. A1) and contended that the property belongs to him. He claimed of obtaining possession over the property by trespass in 1965, and of conducting a tea shop in the building put up by him. Ext. A3 mortgage is a fraudulent document created by the plaintiffs to claim right over the property, was his further case. He also contended that the 1st plaintiff has not obtained right over the property under Ext. A6 partition deed. Impeaching Ext. A3 mortgage deed as not binding on him and disowning his liability to surrender the property as a mortgagee, he further contended that Ext. A1 is the product of fraud and impersonation. In the alternative, it was contended that if at all the plaintiffs have any right over the suit property, their rights have been lost by adverse possession and limitation by his continuous hostile possession over the property from 1965 onwards. Claim for a sum of 20,000/- towards value of improvements was also canvassed, if for any reason, the property is found to be redeemable.

(3.) The trial court, on the pleadings of the parties, raised the following issues;