SREE DEVI AMMA Vs. RUGMINI AMMA

JUDGEMENT

(1.) The question to be decided in these second appeals filed by the second defendant in O. S. 736 of 1945 on the file of the Munsiff's Court, Kozhikode, is the same and they are therefore disposed of by this common judgment.

(2.) O. S. 736 of 1945 was filed by the plaintiff for redemption and recovery of possession of the plaint property with arrears of rent and future mesne profit on the foot of a kana kychit of the year 1924. The suit was resisted by defendants 1 and 2 claiming fixity of tenure under the provisions of the Malabar Tenancy Act. The plaintiff claimed redemption and recovery on the ground that the kanartham exceeded 60% of the jenmam value of the plaint property and consequently the defendants were not entitled to claim fixity of tenure under the Malabar Tenancy Act. The learned Munsiff decreed the suit on 13-8-1946 holding that the kanartham exceeded 60% of the jenmi's right in the land. Ext. A-1 is the copy of the decree. Under the terms of Ext. A-1 after the set off allowed the plaintiff had to deposit Rs. 3825-5-6 before recovery of possession of the property. The decree holder filed E. P. 1162 of 1946 seeking delivery of possession and deposited the sum of Rs. 3825-5-6. In the meanwhile defendants 1 and 2 preferred appeal against the decree for redemption and their attempt to get an order staying the execution of the decree was not successful. On 6-9-1946 the execution court ordered delivery of possession to the plaintiff and the property was delivered to her on 15-9-1946.

(3.) But taking advantage of the reversal of the decree of the Trial Court defendants 1 and 2 filed E. A. 658 of 1956 on 20 7 1956 claiming redelivery of property delivered to the plaintiff in execution of the decree with mesne profits and damages by way of restitution. Mesne profits were claimed at the rate of Rs. 400/- per annum alleging that the plaintiff was realising rent for the plaint building at the rate of Rs. 45/- per mensem and at the rate of Rs. 50/- per annum from the trees in the property. Though the sum of Rs. 3825-5-6 deposited by the plaintiff was not withdrawn by the defendants from court, some of their creditors attached Rs. 633.83 out of the said amount and withdrew the same in satisfaction of their claims.