OUSEPH CHACKO Vs. KRISHNA PILLAI GOVINDA PILLAI

JUDGEMENT

(1.) This Second Appeal by the plaintiff is directed against the concurrent decisions of the two Courts below, dismissing a suit he brought under the provisions of Order 21, Rule 103, C. P. C. As the assignee decree-holder in O. S. 553 of 1101 on the file of the Changanacherry Munsiff's Court, the plaintiff brought the plaint schedule -property to sale and himself purchased it (22-12-1106). That decree was one obtained on foot of a simple mortgage defendant 1 executed in favour of the plaintiff's predecessor-in-interest on 28-2-1100 (Ex. E). Afterwards on 12-4-1101 defendant 1 sold the property to defendant 2 (Ex. D), Defendants 1 and 2 were defendants 1 and 2 respectively in O. S. 553 of 1101 and they were the only defendants to that suit. Soon after the Court sale in his favour was confirmed and he obtained the sale certificate therefor, the plaintiff made an application to the Court to obtain delivery of the property. Coming to know of this application, defendant 5 to the present suit filed a petition raising objections to the delivery. The ground of the objection was that the concerned property belonged to his sakha tarwad, that the tarwad was in possession of the same, that defendants 1 and 2 had no title to or possession of the same and that the plaintiff had therefore obtained no right to get the property delivered over to him. The execution Court upheld the objection by its order dated 29-9-1112 (Ex. G). The plaintiff took the matter in revision before the High Court of Travancore in C. R. P. No. 123 of 1113 and the High Court dismissed the revision holding that as the plaintiff had a remedy by way of an original suit, it was unnecessary for the High Court to consider whether the execution Court's order was right or not. This was on 22-11-1117 and Ex. H is a copy of the order. Apparently the Civil Revision Petition and another proceeding before the High Court (A. S. No. 402 of 1115) between the same parties were heard and disposed of together. The judgment in that appeal (Ex. N) bears the same date as Ex. H, the order on the revision. Thereafter, on 21-11-1118 the plaintiff brought the present suit and he lost it both in the Court of the first instance, the Changanacherry Munsiff's Court and in the Court of first appeal, the District Court of Kottayam. Hence the Second Appeal.

(2.) The plaint schedule property is 4 acres its extent and it forms the eastern one- half of Sy. Plot 335/1 in Nedugunnam Pakuthy. Sy. Plot 335/1 is 8 acres in extent and it originally belonged to one Kmmappally tarwad. On 25-3-1092 the Kunnappally tarwad granted an otti to defendants 3 to 9 to the present suit with respect to 5 acres on the western side, but two junior members of the tarwad got the transaction declared void by the Changanacherry Munsiff's Court in O. S. 165 of 1094. Exhibit J is the decree passed in that suit (25-12-1095). The decree was, however, not executed and in a partition arrangement in the Kunnappally tarwad, dated 222- 1095 (Ex. F), the entire property, that is the whole of Sy. Plot 335/1 was given to defendant 9 to this suit on receipt of a consideration of Rs. 280 from her. The husband of defendant 9 was a kariasthan of the Kunnappally tarwad. There is no separate sale deed to evidence the transfer, but Ex. F has been taken by all concerned as sufficient to effect a valid conveyance. Exhibit F refers both to the otti deed and the subsequent decree declaring it not binding on the tarwad, but proceeds to state that in lieu of the consideration of Rs. 280 received from defendant 9, the property is made over to her absolutely and she was free to get the mutation effected in her name. Defendants 3 to 8 to the present suit are the children of defendant 9. Three years after Ex. F, defendant 9, her second son, defendant 4 and defendants 5 to 8 who were then minors acting through their father, sold the entire 8 acres to defendant 1 for a consideration of Rs. 1,900. According to the plaintiff defendant 1 obtained possession thereunder. That sale deed is Ex. A. Some eight months later on 28-10-1100, defendant 1 re-transferred the western one-half (4 acres) to his vendors (Ex. B). The hypothecation bond (Ex. E) in respect of the eastern one-half which was put in suit in O. S. 553 of 1101 was executed by defendant 1 on the same date as the said re-conveyance. It was on the Court sale pursuant to the decree passed on foot of that bond that the plaintiffs rested his title.

(3.) It is now convenient to refer to the circumstances which led up to the decision of the Travancore High Court in A. S. No. 402 of 1115. We have noticed that on 22-2-1096 the Kunnappally tarwad gave the entire Sy. Plot 335/1 to defendant 9. On 11-8-1098 defendants 4 and 9 to this suit executed a hypothecation bond in favour of one Thomman Mathai for an amount of Rs. 100 in respect of 5 out of the 8 acres comprised in the said Sy. Plot. That bond was sued upon by the hypothecatee in O. S. 38 of 1102 on the file of the Changanacherry Munsiff's Court and he obtained a decree, Defendants 1, 2, 4 and 9 to the present suit were defendants 3, 4, 2 and 1 respectively in that suit and there were no other defendants there. The present plaintiff obtained an assignment of that decree and while he was executing it, defendants 5, 6 and 7 instituted a suit in O. S. 99 of 1104 before the Changanacherry Munsiff's Court to declare the hypothecation bond of 11-8-1098, the decree obtained on foot of it and the execution proceedings thereon as invalid and inoperative as against their sakha tarwad. The decree-holder in O. S. 38 of 1101 was defendant 3 to that suit and the present plaintiff was defendant 4. Defendants 4 and 9 were respectively defendants 2 and 1. The Munsiff gave a decree to the plaintiffs in terms of their plaint and A. S. No. 402 of 1115 was the appeal the present plaintiff filed against the Munsiff's judgment and decree.