VARKI CHACKO Vs. OUSEPH PRAMENA

JUDGEMENT

(1.) This appeal arises out of a suit by the representatives of a prior mortgagee auction purchaser for recovery of possession of mortgaged property from the representative of the puisne mortgagee auction purchaser, on payment of the mortgage money. The facts necessary for the decision of the appeal may be briefly stated.

(2.) The property which is the subject matter of the suit belonged to one Mathen Augusthy of Pulickal. On 20.3.1088 he executed a simple mortgage in favour of one Chandy Devasia who sued on it in OS No. 234 of 1099 and obtained a decree (Ext. B) on 18.4.1099. In execution of the decree he purchased the property on 21.10.1101 and then transferred the same under Ext. AA dated 26.2.1102 to one Mathoo Mathai who obtained a record of delivery (Ext. C) dated 27.3.1103. At the time of institution of that suit there were three later mortgages one of which was a usufructuary mortgage (Ext. H) dated 22.9.1093 in favour of one Mathoo Devasia who had sub-mortgaged the same on 20.7.1095. As the usufructuary mortgagee was not a party to OS No. 234 of 1099, Mathoo Mathai could not get effective physical possession under Ext. C. The other two mortgages were two simple mortgages of 1092 and 1095 in favour of one Narayana Iyer, charging the plaint property and another. Narayana Iyer instituted a suit, OS No. 150 of 1101, against Mathen Augusthy the mortgagor and Mathoo Devasia the usufructuary mortgagee, and obtained a decree, copy of which has been produced as Ext. V. He purchased the plaint property and the other item in execution of his decree on 12.3.1103 and then assigned the same to the first defendant. Ext. Q is copy of the sale certificate and Ext. R the assignment deed to the first defendant. The first defendant obtained a record of delivery (Ext. VIII) on 30.6.1106. In the meanwhile Kuruvilla Ouseph in whom the sub-mortgage right vested had sued in OS No. 507 of 1103 for recovery of the amount due to him. The defendants in that suit were Mathoo Devassia the mortgagee and Mathoo Mathai, who had purchased the auction right in OS No. 234 of 1099. He obtained a decree (Ext. XII) and in execution, he purchased the mortgage right of Mathoo Devasia on 9.10.1105. Mathoo Devassia surrendered possession of Kuruvilla Ouseph on 8.3.1106 under a deed, Ext. XIV, and the latter transferred his rights to the first defendant on 23.11.1108 under Ext. XIII. By taking Ext. XIII, the first defendant who had obtained the puisne mortgagee's auction right perfected the possession obtained under Ext. VIII. It is necessary to refer briefly to certain legal actions between Mathoo Mathai, who claimed title and possession under the first mortgage, and the first defendant and his predecessors. The earliest of these was a suit, OS No. 543 of 1103, filed on 6.8.1103 by Mathoo Mathai against Mathen Augusthy and Mathoo Devassia alleging that they had trespassed into the property. Ext. D is copy of the plaint and Ext. E the written statement of Mathoo Devassia in that suit. A decree was obtained by Mathoo Mathai and Ext. F is copy of the same. In execution of the said decree he obtained another record of delivery (Ext. G) dated 17.3.1106. Mathoo Mathai then filed a criminal complaint against the first defendant alleging trespass, but this was dismissed. Thereafter, he conveyed his rights to Thommen Ouseph, grandfather of the plaintiffs respondents, under Ext. A dated 7.9.1107. Thommen Ouseph instituted a suit as OS No. 166 of 1118 for declaration of his title and recovery of possession of the property from the first defendant. Though he obtained a decree in the original court, the same was reversed by the High Court of Travancore in A.S.No. 77 of 1122. Ext. XIX is copy of the appellate judgment. In dismissing the suit the High Court observed that the rights between the parties who were representatives of successive mortgagees who had obtained decrees without impleading each other and had purchased the property in execution of their respective decrees should be worked out in appropriate proceedings and further indicated that the appropriate remedy would be a suit for redemption of the puisne mortgages. This suit has accordingly been brought for redemption of the puisne mortgages on the strength of the title under the Court sale in execution of the decree on the earliest of the mortgages.

(3.) The first defendant contested. His main contentions were that the assignment (Ext. AA) taken by Mathoo Mathai was benami for his brother Mathoo Devasia, the mortgagee under Ext. H that the rights obtained by the latter were extinguished by the sale in execution of Narayana Iyer's decree, that Mathoo Mathai never had possession, that the decree and execution proceedings in OS No. 543 of 1103 were collusive, that the present suit was barred by res judicata by reason of the decision in OS No. 166 of 1118, that the suit was also barred by limitation and adverse possession and that in the event of redemption he was entitled to a sum of Rs. 7,000/- as compensation for improvements effected on the property.