KUNJAUSEPH OUSEPH Vs. OUSEPH THOMAS

JUDGEMENT

(1.) The question arising for decision in this civil revision petition is whether a suit for extinguishing Michavara pattom right in immovable property is liable to be stayed under S.4 of the Kerala Stay of Eviction Proceedings Act, I of 1957.

(2.) The facts necessary for the decision of the case may be stated. The property described in the plaint schedule was demised on Michavara Pattom by Padakasseri Tarward to the defendant and his brother Mathen in the year 1099. This arrangement was renewed in the year 1117. In the mean while the defendant and his brother had executed an usufructuary mortgage to one Pappi Thoma who in turn mortgaged his right to one Joseph Chandy. On 19-8 - 1118 the defendant and his brother executed a deed of mortgage in favour of the plaintiff directing him to redeem the mortgage in favour of Pappy Thoma and accordingly the plaintiff redeemed that mortgage as well as the sub-mortgage in favour of Joseph Chandy and obtained possession. The plaintiff then purchased the equity of redemption from Padakasseri tarwad and he also obtained a release of the defendants brothers right in the property. Thus on the date of suit the plaintiff was in possession of one-half of the property as full owner while in respect of the other half, he owned the equity of redemption and was in possession as mortgagee of the defendant. The present suit was brought by the plaintiff for payment of a sum of 162 fanams to the defendant being one-half of the consideration under the michavara pattom deed and for a declaration that on such payment, the Michavara Pattom right of the defendant was extinguished As the plaintiff was in possession there was no prayer for recovery of possession from the defendant. The defendant contend that the suit was liable to be stayed under S.4 of Act I of 1957. This contention was raised in a statement filed on 5-12-1957 which may be translated as follows:-

(3.) Shri T.S. Krishnamurthy Iyer, learned counsel for the petitioner argued that S.4 was not applicable as the property could not be treated as a holding the defendant being out of possession, and that even if it could be so deemed, the suit was not one for eviction.