SANKARAN POULU Vs. SUNDARI VIJAYAMMA

JUDGEMENT

(1.) Defendants 1 to 3 in a suit for recovery of possession are the appellants. During the pendency of the appeal the first appellant died. His legal representatives were impleaded as supplemental appellants. The suit was for declaration of title and for recovery of possession. The plaint schedule property measures 43 cents. It is comprised in Sy. No. 493/4 of Neyyattinkara Village. Originally it belonged to Bhagavathi Pillai and Govinda Pillai. They mortgaged the property to one Subramaniyan Nadar and Kunjan Nadar as per Ext. A1 mortgage deed of 1113 M.E. (corresponding to 1938). On the other hand the appellants would contend that Bhagavathi Pillai and Govinda Pillai had earlier executed a lease deed in respect of the plaint schedule property and other properties in favour of one Raman Nadar and Kochappy Nadar in 1107 as per Ext. B1 who assigned that right to Nelson Nadar in 1972 as per document No. 1629/1972. It is their further case that Nalson Nadar mentioned above assigned his lease hold right to Jeevanayakam in 1972 as evidenced by Ext. B2. The learned counsel or the plaintiffs would submit that Ext. B1 lease deed has nothing to do with the plaint schedule property since the survey number mentioned therein is totally different. But the learned counsel for the appellants would submit that in Ext. A1 itself there is a recital regarding the earlier lease in favour of Raman Nadar. It is further contended that since the lease was not determined there were litigations between the parties and ultimately in order to avoid the litigations, the father and mother of the plaintiffs sold the property in 1974 to defendants 3 and 4 on their own behalf and on behalf of the plaintiff, she being represented by her mother as guardian. Ext. B5 is that sale deed dated 19-8-1974. According to the plaintiff, her father and mother were in direct possession of the property on the strength of Ext. A2--the assignment deed of 1942 and it was because they were in possession of the property they executed Ext. A5 gift deed to the plaintiff and Thankappan Nadar, her 'would be husband' on 2-7-1973.

(2.) PWs 1 and 2 were examined and Exhibits A1 to A9 were marked. DW1 was examined on the side of the defendant and Exhibits B1 to B9 were marked. The suit was dismissed by the trial court, but the lower appellate granted a decree as sought for. The learned counsel for the appellants has assailed the finding of the lower appellate court on various grounds.

(3.) The following substantial questions of law have been re-framed: