AYISHA BEEVI SUBAIDA BEEVI Vs. IBRAHIM KUNJU SHAMSUDEEN

JUDGEMENT

(1.) This appeal is by the 1st defendant, the only contesting defendant before the trial court.

(2.) The suit was one for redemption of the plaint scheduled property. It was dismissed on the ground that the suit, at the instance of the plaintiff, was barred in terms of Order IX Rule 9 of the Code of Civil Procedure, as the earlier suit filed by the mother the original mortgagor was dismissed for default. The plaintiff carried the matter in appeal. The appellate court found that the suit being one for redemption, the cause of action was a recurring one as in the case of partition suit, the bar under Order IX Rule 9 was not attracted. Consequently, as there was no much dispute with regard to the right of redemption, the suit was decreed. The value of improvements was also computed applying the provisions contained in Section 16 in the Compensation for Tenants Improvements Act, finding that the property was over cultivated. This appellate decree is under challenge mainly raising the question of law centered around whether the second suit was barred by Order IX Rule 9 of the Code of Civil Procedure. The further question of law as to the propriety of the decision regarding the kudikidappu entered into by the appellate court without referring the claim to the Land Tribunal is also raised. The appellant raises yet another question, as to whether the court below was justified in reducing the value of improvements on the ground that the property was over cultivated.

(3.) The parties join on the platform that the mortgage deed was executed by the mother of the plaintiff in favour of the defendant and that the right of the mortgagor had devolved upon her legal heir, the plaintiff. The parties also join that the plaintiff's mother had earlier instituted a suit for redemption and the suit had been dismissed for default.