DAMODARAN Vs. SHEKHARAN

JUDGEMENT

(1.) Defendants 1 to 11 in O. S. No. 273/81. Sub Court, Kozhikode are the appellants. This suit was originally filed as O. S. No. 191/78 before the Munsiff Court, Kozhikode as one for redemption and recovery of possession. The defendants contended that there was only an agreement to mortgage and so the suit for redemption was not maintainable. Thereupon the plaint was amended as one for recovery of possession. When the valuation was accordingly amended, the valuation exceeded the pecuniary jurisdiction of the Munsiff Court. Accordingly the plaint was resumed to the plaintiff, who presented it before the Sub Court. That court granted k decree for recovery of possession of the plaint schedule properties. That decree was confirmed by a learned Judge of this Court in A. S. No 355/88. This appeal is directed against the said judgment.

(2.) The plaintiff executed Ext. A18 (which is same as Ext. B12) agreement dated 19-7-1968 in favour of the 1st defendant and others agreeing to execute a usufructuary mortgage la respect of the plaint schedule property for a consideration of Rs. 2000/- in favour of the 1st defendant for six years and a simple mortgage in favour of the 2nd defendant, who is the wife of the 1st defendant for a consideration of Rs. 8000/- for a term of three years. On the date of Ext. A18 plaintiff received Rs. 2700/-. The balance amount of Rs. 7500/- was to be paid within two months of the agreement. The plaint schedule properties were put in the possession of the 1st defendant on the date of agreement itself.

(3.) Defendants 3 to 11 are the children of defendants 1 and 2. Defendants 12 and 13 are the tenants in a shop building in the plaint schedule properties. Defendants 1 to 11 are residing in the building in the plaint schedule property. According to the plaintiff, he had not received the full amount mentioned in the agreement. However, to avoid unnecessary disputes he it conceding the receipt of the amount. Defendants are not entitled to retain possession of the properties. Accordingly the suit was filed for recovery of possession and for other reliefs.