RAMAYYA KOUNDAN Vs. PECHI AMMAL KOUNDACHI

JUDGEMENT

(1.) DEFENDANTS 2 and 3 in O. S. 346 of 1123 on the file of the Chittur Sub-court are the appellants in A. S. No. 498 of 1951. Plaintiff in o. S. No. 366 of 1123 of the same court, who is the second defendant in O. S. No. 346 of 1123, is the appellant in A. S. No. 1086 of 1951. He is also the plaintiff in O. S. No. 367 of 1123 and the appellant in A. S. No. 1087 of 1951.

(2.) PECHIAMMAL, the first plaintiff in O. S. No. 346 of 1123, is the daughter of one Arunachala Goundan who died in 1118. Arunachala's wife, Athakkal, died in 1114. The first plaintiff is their only issue. The property which is the subject matter of the suit, 11/2 valloms of garden land, was purchased along with other properties in 1082 in the name of one Chennimala goundan, a relative of Arunachala Goundan. In Thulam 1087 Chennimala executed two sale deeds in respect of the properties, one in favour of Arunachala and the other in favour of athakkal. The sale to Athakkal related to 31/2 valloms of garden land and 20 paras of paddy land. The property in dispute in O. S. No. 346 of 1123 forms part of this 31/2 valloms of garden land. The properties which are the subject matter of the other two suits, viz. , O. S. Nos. 366 and 367 of 1123, also form part of the properties sold to Athakkal by Chennimala. In 1091 there was a partition in the family of Arunachala, and the properties comprised in the sale deed in favour of Atthakkal were included in that partition and were allotted to the share of Arunachala Goundan. The second defendant, Ramayya Gounda, and the third defendant, Sivamala Goundan, are the brothers of Arunachala Goundan. The second plaintiff, Venkitachala Goundan, is the son of Rangaswamy Goundan, who is a cousin of Arunachala Goundan. In Mithunam 1113 Athakkal executed a registered will Ext. A, bequeathing the properties included in the sale deed in her favour to her daughter the first plaintiff. On 3. 2. 1120 the first plaintiff filed a suit against the first defendant in the Chittur Munsiff's Court as O. S. No. 23 of 1120 for recovery of possession of the 11/2 valloms of garden land which is the subject matter of O. S. No. 346 of 1123 alleging that she became entitled to the property under the will executed by her mother and that she leased it to the first defendant through her father on an annual rent of Rs. 180/ -. The first defendant in that suit, who is the same as the first defendant in O. S. No. 346 of 1123 contended that the property belonged to Arunachala, that ramayya leased it to him on behalf of Arunachala, that the first plaintiff had no title to the property and that the lease alleged in the plaint was not true. After the filing of the suit, the first plaintiff assigned her rights to venkitachala Goundan and he was impleaded as second plaintiff in the suit. Subsequently Ramayya and Sivamala, defendants 2 and 3 in O. S. No. 346 of 1123, were also impleaded as additional defendants in the suit. They also denied the title of the first plaintiff and supported the first defendant. When the suit came for evidence the first plaintiff sought to amend the plaint by adding an alternative ground that even if the property belonged to Arunachala she was entitled to recover possession of it as his heiress. The amendment was refused by the trial court and the revision filed before the High Court met with no success. The suit was accordingly tried on the original pleadings and was dismissed on 29. 5. 1122 on the ground that the lease set up in the plaint was not true. On 30. 7. 1122 the present suit was filed by the two plaintiffs in the trichur District Court as O. S. No. 123 of 1122 for recovery of possession of the property on the strength of title. It was alleged in the plaint that the property belonged to Athakkal and that the first plaintiff got it under her will. It was also alleged alternatively that even if the property belonged to arunachala the first plaintiff was the sole surviving heir to him and that in any case she was entitled to recover possession of the property. The prayer in the plaint was that the second plaintiff might be given possession of the property since the first plaintiff had assigned her rights to him. Defendants 2 and 3 were also sought to be made liable for mesne profits along with the first defendant. By a subsequent amendment of the plaint it was prayed that in case it was found that the second plaintiff was not entitled to recover possession of the property the first plaintiff might be allowed to recover possession of the same.

(3.) THE defendant in O. S. No. 366 of 1123 contended that the property belonged to Athakkal, that Pechiammal got it under her will and that he was holding it on oral lease under Pechiammal. THE defendant in O. S. No. 367 of 1123 contended that he was holding the property on oral lease under arunachala Goundan and after his death under Pechiammal, his legal heir. THE allegation in the plaint that Ramayya leased the property as manager of arunachala was denied.