MAMMU Vs. KUNHI MADHAVAN VAZHUNNAVAR

JUDGEMENT

(1.) THE suit property belonged in jenmom to the plain tiff's tarwad and was leased to one Devaki under a marupat Ex.A -1,in the year 1937.She surrendered the lease -hold by Ex.A -2,in the year 1938.Afterwards,in the Same year,the property was leased under a marupat Ex.A. -3,to one Sankaran,who assigned his rights to Kunhikrishna Kurup by Ex.A -4,also in the same year.Under a partition.decree,O.S.51 of 1941,the jenmom right in the property was allotted to the share of the plaintiff's tavazhi.The property to the east of the suit property also belonged the plaintiff's tarwad and was outstanding on lease with one Venkitasubban Patter under Ex.B -1 or Ex.B -2 of the year 1906.Under a partition of the year 1941,Ex.A -8,in the latter's family,the leasehold was allotted to Seshan Patter,who assigned his right to the first defendant 3 in the same year.The first defendant sued Kunhikrishna Kurup for recovery of possession of the suit property in O.S.577 of 1948,on the allegation that he trespassed into it.Although the suit was dismissed by the trial court,it was decreed in appeal by judgment Ex.B -9,dated the 30th September,1954.The first defendant petitioned in execution for recovery of possession on the 9th April,1955,but Kunhikrishna Kurup executed Ex.A -5,a deed of surrender of possession of the property to the plaintiff,on the 17th April,1955.This notwithstanding,the first defendant recovered possession of the suit property in execution,on the 7th June,1955.The plaintiff commenced the present suit on the 31st October,1955,alleging inter alia ,that he is in possession of the property pursuant to Ex.A -5 and praying for recovery of possession which the first defendant may be deemed to have under or in pursuance of the court delivery.The first defendant contended,that the suit property was not covered by any of the dealings,Exx.A -1 to A -4,that these documents were not acted upon,and that the property was included and dealt with as part of the leasehold in Exx.B -1 to B -3.The first court accepted these contentions,holding that Exx.A -1 to A -4 did not include the suit property and were not acted upon,but in appeal,the Additional District Judge repelled them,holding that Exx.A -1 to A -4 related to and included the suit property and that possession of it passed under them.

(2.) IN second appeal by the first defendant,learned counsel challenged the findings of the Additional Judge and relied on the reasoning of the Munsiff at pages 4 and 5 of the judgment,that Exx.A -1 to A -4 had not taken effect.But the Judge has gone into the evidence in detail regarding identification of the property and come to the conclusion that the suit property was included in Exx.A -1 to A -4;if so,there is no reason to think that possession did not pass according to their apparent tenor.The Judge also weighed the oral evidence on the issue of possession and held that the lessees from time to time have been in possession of the suit property.Nothing that was urged by learned counsel for the first defendant,is sufficient to induce me to differ from the Judge on this aspect of the case.

(3.) FOR the first defendant,learned counsel took the further point,that Ex.A -5 having been executed during the pendency of the execution proceedings,is hit by the rule of lis pendens and so the plaintiff is precluded from seeking to recover possession of the property.This point has been specifically taken in the written statement;but the plaintiff had averred in the plaint,that the suit in which Ex.B -9 judgment was rendered,was a collusive one.Apparently,the plaintiff did not press for an issue of fact as to this,though of course no issue of law as to lis pendens was raised either.At the hearing of the appeal before the Judge,the first defendant's counsel did not advance this contention.But all this does not preclude the first defendant from raising the point in this Court,as a point of law.If the plaintiff was at all serious about the plea of collusion,it was up to him to have pressed for an issue or adduced evidence upon it.The point now taken for the first defendant cannot be ruled out.