PARAMESWARAN ACHARY NARAYANAN ACHARY KUTIYIL PUTHEN VEEDU Vs. PAREMESWARAN ACHARY KUNJU PILLAI ACHARI

JUDGEMENT

(1.) The Second Appeal at the instance of the plaintiffs arises from the judgment and decree of the Munsiff's Court, Punalur in O.S. No.101 of 1989 as confirmed by the Sub Court, Kottarakkara in A.S. No.27 of 1991.

(2.) First appellant and 1st respondent are the children of the late Parameswaran Achari to whom the suit property originally belonged. According to the appellants, and it is not disputed also, that the said Parameswaran Achari created mortgage over the suit property in favour of the appellants as per mortgage deed dated 18.01.1124, a copy of which is Ext.A1. Appellants claimed that by virtue of Ext.A1 they got possession of the suit property. Later Parameswaran Achari executed a settlement deed in favour of the respondents on 08.06.1971. According to the appellants that settlement deed was not acted upon. While so, the respondents filed O.S. No.86 of 1974 against the appellants for redemption of mortgage and a decree was passed in that case allowing redemption (Exhibits A2 and B1 are the copy of decree and judgment, respectively dated 31.01.1997 in O.S. No.86 of 1974). There was direction in that decree to deposit the mortgage money but that was not complied by the respondents. The decree was not executed for more than 12 years and its execution has become barred by limitation. Appellants claimed that they have perfected title by adverse possession and limitation and that the respondents have no right to redeem the mortgage as per the decree in O.S. No.86 of 1974. They prayed for a declaration in that line and consequential reliefs.

(3.) Respondents contended that the property referred to in Ext.A1 is the subject matter of settlement deed. As per that settlement deed, of the total 23 cents, 7 cents was settled in favour of the first appellant while the respondents were given 8 cents each. Parties were given possession of the respective shares allotted to them as per the settlement deed. Pursuant to the decree in O.S. No.86 of 1974 respondents filed E.P. No.137 of 1977 and deposited the mortgage money. By that deposit the mortgagor-mortgagee relationship stand snapped. Respondents claimed that pursuant to the settlement deed, they are in possession of portion of the the property settled in their favour.