BHAGEERATHY PILLAI PANKAJAKSHY AMMA Vs. CHELLAMMA PILLAI RAJAMMA

JUDGEMENT

(1.) PLAINTIFFS 1 and 3 in O.S.No.370 of 1977,Munsiff's Court,Neyyattinkara are the appellants in this appeal.The defendants in the suit and plaintiffs 2 and 4 to 7 in the suit are the respondents herein.The suit was one for redemption.Amongst others,the first defendant raised a plea,that he is a tenant in respect of a portion of the suit property,under S.4A(1)of Act 1 of 1964.The matter was referred to the Land Tribunal,Neyyattinkara.It was found that the first defendant is entitled to the benefit of S.4A(1)of Act 1 of 1964.The learned Munsiff accept the said finding and dismissed the suit.In appeal by the plaintiffs as A.S.No.192 of 1979,the learned Subordinate Judge,Thiruvananthapuram,by judgment dated 20th February 1982,dismissed the appeal.Plaintiffs 1 and 3 in the suit have come up in second appeal.

(2.) THE following substantial question of law was formulated,at the time of admission of the appeal on 10th January 1984: "Was the lower Appellate Court right in holding that the first defendant and his predecessors in interest were holding the plaint schedule property as mortgagees for a continuous period of more than 50 years of immediately prior to 1st January 1970? " The facts of this case are in a narrow compass.The suit is one for redemption.The plaint schedule property is 2 acres 49 cents in Sy.No.184/IB of Athiyannoor Village.The property was outstanding on mortgage with one Padmanabhan along with other properties.The rights of Padmanabhan devolved on his son Erulan.The plaintiffs executed an Ottikuzhikanam in respect of that property in favour of Padmanabhan Erulan in 1119(Ext.A -1 ).On 6th December 1951 Erulan assigned his right to the first defendant.That is how the mortgage right devolved on the first defendant.Defendants 2 to 17 are in possession of a few items under the first defendant.

(3.) THE appellants 'counsel urged two points before me.The first point was that though the property was outstanding on mortgage from 1081 M.E.with Padmanabhan and later with Erulan which devolved on the first defendant,by the execution of Ext.A -1 mortgage deed by the first plaintiff and others in favour of Erulan,the prior mortgage was put an end to.There was an extinguishment of the earlier mortgage.The first defendant is holding the property on the date of the suit only under Ext.A -1.There is no continuous possession of 50 years as contemplated under S.4A(1)of the Act.In order to substantiate the above plea,reliance was placed on the decision in Prithi Nath v.Suraj Ahir(AIR 1963 SC 510 ),Raghavan Pillai v.Velayudhan Pillai(1979 KLT 510(FB)),Kali Karthyayani v.Pappu(1980 KLT 541(FB)) and Govindan v.Bhaskaran(1992(1)KLT 577(SC)).By reference to these decisions,it was contended that the mortgage of 1081 stood extinguished or determined and after the execution of Ext.A -1 mortgage deed dated 2nd Medom 1119,it cannot be said that the first defendant was holding the land comprised in the mortgage for a continuous period of not less than 50 years immediately preceding the commencement of the Act.