CHAKRAYUDHAN Vs. SARADA

JUDGEMENT

(1.) This appeal by the 4 plaintiffs arises put of a suit for declaration of title, cancellation of a sale deed, recovery of possession and redemption. The relief of redemption has been concurrently granted in their favour, but the courts below have differed on the relief of recovery of possession. The material facts necessary for the disposal of the appeal are the following: The suit properties belonged to a family called Poovakuzhi tarwad. Ayyana Mallan, the then karnavan of the tarwad executed a mortgage Ext. A14 dated 13-12-1096 for 1/3rd share of the properties the plaint B schedule property in favour of one Piratti Madi. This was followed by a puisne mortgage Ext. A1 dated 18-1-1102 to one Mathevan Kochumini with a direction to redeem Ext. A14 The first defendant who is a member of the Poovakuzhi tarwad became entitled to the puisne mortgage by virtue of certain assignments. In 1118 the then karnavan Marthandan Narayanan executed a sale deed Ext. A1 for the C schedule property to the second defendant. The Poovakuzhi tarwad partitioned under Ext. A9 dated 20-1-1966 under which the equity of redemption over the mortgaged properties the B schedule property and the C schedule property were allotted to the plaintiffs. B and C schedule properties constitute the A schedule property. The first defendant instituted a suit O. S.764 of 1124 for redeeming the mortgage Ext. A14 and for an injunction against the second defendant he was the third defendant in that suit and another to restrain them from interfering with his possession over the C schedule property. In that suit a receiver was appointed the same year (1949). The suit O. S.764 was dismissed in respect of the C schedule property. In the meanwhile, the Makkathayam heirs of the former karnavan filed a suit for partition, O. S.27 of 1962. In that suit the 4th defendant was appointed receiver and he took over possession from the receiver in O. S.764 of 1124. In the present suit the plaintiffs seek to set aside the sale deed Ext. A2, redeem the mortgage over the B schedule property and recover the C schedule from the receiver. For the purpose of the appeal which is mainly concerned with the question of limitation it is enough briefly to note the contentions of the second defendant which can be summarised thus: The properties belonged to the sakha of Ayyana Mallan. The other sakhas had no right to the properties. Marthandan Narayanan the senior anandiravan in his sakha sold the suit properties to the second defendant under Ext. A2, the sale deed of 1118 and a portion of the property was subsequently sold to the 3rd defendant. The puisne mortgagee Kochumini did not redeem the prior mortgage. In O. S.764 of 1124 brought by the first defendant it was found that he could redeem the mortgage and recover possession of the mortgaged properties only and not any other properties. Later defendants 2 and 3 filed O. S.814 of 1967 to redeem and recover the properties from the first defendant and obtained a decree. The second defendant is entitled to get possession from the receiver. The plaintiffs did not get any right over the suit properties and even if they had any right, it was lost by limitation and adverse possession.

(2.) The Munsiff decreed the suit as prayed for except that of redemption with costs.

(3.) On appeal by the legal representatives of the second defendant and their transferees the learned District Judge formulated 3 questions for decision. (1) Whether the plaintiffs are members of the jenmi tarwad. (2) Whether the sale deed Ext. A2 in favour of the second defendant is void and (3) Whether the plaintiffs' title to the suit property, if any, was lost by limitation and adverse possession. On the first point the learned Judge held that the plaintiffs are members of the tarwad. On the validity of Ext. A2 he held that it was executed by the karnavan even though it describes that the properties belonged to him, that it was contrary to S.21, Travancore Ezhava Act and was therefore void and that a suit was not necessary to set it aside. On the 3rd point it was held that at the date of the suit the plaintiffs' title to the suit properties except the mortgaged properties had already become lost by adverse possession. On this last finding the learned Judge reversed the Munsiff and dismissed the suit except in respect of the mortgaged property (about which there was no question before the appellate court).