KUNHI AMMA Vs. NARAYANA PILLAI

JUDGEMENT

(1.) Two points were urged before us in this second appeal by the defendant (defendant 2) in a suit for declaration as to title and for recovery of possession of an item of immovable property.

(2.) The plaintiff respondent purchased the property at the court auction sale held in execution of the decree in O.S. 2249 of 1102, on the file of the District Munsiff's Court, Trivandrum. The tarwad of the defendants in that suit held the property on kanom tenure and the appellant, a member of that tarwad, was defendant 4 in the suit. That suit was one instituted by the jenmi of the property to recover arrears of michavaram and other dues. The purchase the plaintiff respondent made at the execution sale was confirmed on 6.5.1104. What was put up for sale was, of course, only the kanom right of the tarwad. Ext. A, delivery receipt shows that the court delivered the property over to the auction purchaser on 25.2.1113. Meanwhile on 20.2.1112 there was a partition in the tarwad of the defendants in O.S. 2249 and among other items the suit property was allotted to the share of the appellant. The execution sale was completely left out of account in effecting the partition. On the same day the partition deed was executed the appellant executed an otti deed in respect of the plaint property in favour of defendant 1 and the appellant's case is that defendant 1 continued to be in possession thereafter, no actual transfer of possession having taken place under Ext. A. The plaintiff instituted this suit in 1118 alleging that the two defendants to it had trespassed upon the property in 1117 and claimed a declaration as to his title and also sought to recover possession. Soon after the suit was instituted defendant 1 surrendered the property to the appellant, defendant 2. The Trial Court discountenanced the case of trespass but at the same time upheld the validity of the execution sale and gave a decree in favour of the plaintiff to recover possession. On appeal by the present appellant before the Trivandrum District Court, the learned temporary Second Judge set aside the Munsiff's decision and remanded the case for a trial de novo. The plaintiff took the matter before the High Court in C.M.A. 147 of 1124 and by the decision given there, on 15.3.1950, to which one of us was a party, the order remanding the case to the Trial Court was set aside and the District Court was directed to rehear the appeal and dispose of it according to law. The present second appeal is against the revised decision of the District Court by which Munsiff's decree in favour of the plaintiff was affirmed.

(3.) The two points raised before us in the second appeal were:-