VISHNU NAMBUDIRI Vs. VENKITACHALAM IYER

JUDGEMENT

(1.) This is an appeal preferred by the plaintiff whose claims in respect of the suit property were disallowed by the lower court. The basis of the plaintiff's claim of title to the property is the sale deed Ext. F dated 27.7.1110 executed in his favour by the District Judge at Kottayam on behalf of the defendant in O.S. No. 86 of 1104 on the file of that court. That was a suit instituted by the present plaintiff against the defendant in that suit for a decree for specific performance of a contract for sale of the identical property. Ext. D is copy of the plaint and Ext. E copy of the decree in that case. The sale deed Ext. F happened to be executed by the court because the defendant had failed to execute the conveyance as per the terms of the decree passed in that suit. The following facts disclosed by the pleadings in the case will give an idea as to how the defendant in that case purported to execute the contract for sale of this property as its owner.

(2.) The plaint item along with other properties originally belonged to one Narayana Pillai Gopala Pillai of Chemanthara House and he had mortgaged these properties in favour of one Venkitachalam Iyer Neelakanta Iyer, the father of defendants 1 to 8, on 24.2.1104. For recovery of the amount due under that mortgage Neelakanta Iyer filed the suit O.S. 3/1107 copy of which is Ext. G. In the meanwhile, Narayana Pillai Gopala Pillai, the owner of the properties, had executed a sale deed dated 28.4.1104 in favour of one Krishna Pillai Parameswaran Pillai of Manaloor House. The debt due under the decree O.S. No. 642/1100 which one Ramakrishna Pillai had obtained against Narayana Pillai Gopala Pillai, had been directed to be discharged by the vendee Krishna Pillai Parameswaran Pillai. It was this Parameswaran Pillai who executed the agreement for sale of the suit property in favour of the present plaintiff on 3.5.1104. The consideration stipulated of Rs. 2,500 out of which Rs. 844 was paid at the time of the agreement. The failure to execute the sale deed as per the terms of the agreement led to the institution of the suit O.S. 86/1104 which was ultimately compromised by the parties. The decree Ext. E was passed in terms of that compromise. It may be stated in this connection that the decree holder in O.S. 3/1107 had not been made a party to the plaintiff's suit O.S. 86/1104 while Parameswaran Pillai, who had executed the agreement for sale in favour of the present plaintiff, had been made a party to O.S. 3/1107. In due course the decree in O.S. 3/1107 was put into execution and the plaint property was brought to sale on 14.6.1108 and purchased by the decree holder himself in satisfaction of his claims under the decree. He also obtained delivery of the property through court on 16.11.1108. Ext. I is the sale certificate in that case. It was long after the completion of the execution proceedings in that case that the sale deed Ext.F happened to be executed in favour of the present plaintiff on the strength of the decree Ext. E. When he attempted to obtain possession of the property the auction purchaser in O.S. 3/1107 obstructed and accordingly the plaintiff applied to the court to put him in possession of the property after removing the obstruction. That application was dismissed on 28.5.1117 after upholding the obstructor's claim for possession. That order was confirmed by the erstwhile Travancore High Court by its judgment in A.S. No. 651/1118. Ext. J is copy of that judgment.

(3.) The position taken by the plaintiff in the present suit is that the decree and the execution proceedings in O.S. 3/1107 as also the subsequent orders passed against him will not in any way affect his title to the property obtained under the sale deed Ext.F. According to him the proportionate amount chargeable on the plaint property by virtue of the mortgage deed which formed the basis of the decree in O.S. 3/1107 will not exceed Rs. 1,000 and that on payment of this amount to the defendants who are the legal representatives of the auction purchaser in that case he is entitled to get recovery of possession of the property from them. From the date of deposit of that amount the plaintiff has claimed mesne profits also at the rate of 250 paras of paddy per year. By way of alternative relief, he has claimed a charge on the property to the extent of Rs. 844 paid by him to Krishna Pillai Parameswaran Pillai under the agreement for sale dated 3.5.1104. These claims were resisted by the 3rd defendant who contended that the plaintiff is not entitled to any of the reliefs claimed in the plaint and that the entire title to the property passed on the auction purchaser in O.S. 3/1107. It was also contended that neither the agreement for sale taken by the plaintiff subsequent to the mortgage which was the basis of the decree in O.S. 3/1107 nor the decree in O.S. 86/1104 which culminated in the execution of the sale deed Ext. F, could be availed of by the plaintiff as conferring any title on him to the property as against the auction purchaser in O.S. 3/1107. The lower court upheld these contentions and dismissed the suit. The correctness of that decision is challenged by the plaintiff in this appeal.