SANKARAN NAMBIAR Vs. PILLIATHIRI AMMA

JUDGEMENT

(1.) he suit which gave rise to this second appeal was for recovery of property from the defendants with mesne profits past and future ignoring the summary order passed on E. A. No. 163/1949 on the file of the District Munsiff of Payyoli.

(2.) The facts are as follows: The suit property belonged to Chovvayil tarwad in jenm in possession. There was a suit for partition of that tarwad, registered as O.S. 1106 of 1943 on the file of the District Munsiff of Payyoli and by the final decree therein the suit property was allotted to the plaintiffs. When plaintiffs applied by the E.A. 163/1949 for delivery of the property they were obstructed by the 1st defendant who claimed to be in possession of the property under a lease, Ext. B1, dated 25-9-1943 granted by Kunhunni Adiyodi the karnavan of the plaintiffs tarwad. Plaintiffs application for removal of the obstruction was dismissed by the executing court on 31-8-1950. Plaintiff has therefore instituted this suit to ascertain her right to the property as per the allotment in the final decree of the partition suit and to recover the property from the defendants

(3.) The learned Munsiff accepted the defence contention, and dismissed the suit with costs. On appeal by the plaintiffs, the learned District Judge found that the oral lease of 1109 was untrue, that Ext. B1 lease was actually executed on 27-10-1943 (the day it was registered) on a stamp paper purchased by a stranger on 25-9-1943 and secured from him for the purpose of concoting a lease thereon, that the lease having come into existence only subsequent to the institution of the partition suit (which was on 12-10-1943) was affected by lis pendens and as such totally invalid so far as the plaintiff was concerned, that the lease was an improvident transaction by which the tarwad would not be bound, that the members of the tarwad have treated it as void when they framed the suit for partition alleging the property to be in direct possession of the tarwad, and that the lease under Ext. B1 would not therefore enable the 1st defendant to claim lawful possession of the property or resist the plaintiffs claim to possession thereof, and decreed the suit with mesne profits at the rate of Rs. 35/- from 15-2-1949 when 1st defendant resisted delivery to the plaintiffs. Hence this second appeal by the 1st defendant.