KUNHAMMED KUTTY Vs. AVOKKER

JUDGEMENT

(1.) PLAINTIFF in a suit for recovery of possession on the strength of title is the appellant in the second appeal. The relevant facts, briefly stated, are the following:-The plaintiff purchased under Ext. Al dated 8/8/1934 kanam-kuzhikanam rights over a property which measured forty 6' 'koles east-west and 31 north-south. The vendors were defendants Nos.l to 3 and Kunhunni Musaliar, father of defendants Nos. 4 to 6. At the time of the institution of the suit Kunhunni Musaliar was no more. The consideration for the sale was Rs. 1,500/. A sum of Rs. 1.094 out of the said consideration was reserved with the plaintiff for discharging the liability under a hypothecation bond No 453 of 1922 in favour of Raman Somayajippad. The liability was not discharged as undertaken. It necessitated the execution of a fresh mortgage deed Ext. Bl dated 25-3-1935, in which the plaintiff herein and the vendors of Ext. Al joined as mortgagors. That document took in the property conveyed under Ext. Al as also other items. The liability under Ext. Bl also was not discharged. That led to the institution of a suit by the assignee of the mortgage, OS. No. 26 of 1947, of which Ext. A2 dated 8-3-1948 is the judgment. id the light of the beneficent statutory provisions available, the mortgage liability was scaled down and a decree was granted for the amount so scaled down. Execution petition was levied in that suit, E.P. No. 604 of 1961, Ext. A3 being the copy of the execution petition with orders therein. The decree-holder in OS. No. 26 of 1947 suffered further deduction in the amount due under the decree in view of the provisions of the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958). The decree-holder could recoup from the plaintiff herein only a sum of Rs. 11.51 which had been allowed by way of costs in the trial court and Rs. 37 in the appellate court by a process of adjustment of the above amounts which the plaintiff herein (who was the 7th defendant in that suit) had been granted under the decree. The balance liability under the decree was discharged by the 1st defendant and ultimately a satisfaction was recorded under Ext. B3.

(2.) ACCORDING to the plaintiff, only a portion of the property conveyed under Ext. Al was given possession to by the vendors at the time of the document. The northern portion which takes in the plaint schedule property was agreed to be delivered only on the discharge of the hypothecation liability, In as much as under Ext. B3 that liability had been settled, the plaintiff was entitled to recovery of the plaint schedule property. The demand for surrendering the possession of the property under the notice Ext. A4 was resisted by the reply Ext. A5 dated 22-3-1968. The present suit was thereupon filed.

(3.) THE main controversy in the present case relates to the question whether the suit is barred by limitation. THE effect of S.91 and 92 of the Evidence Act arises only as one facet of that larger question.