ITHACK JOSEPH Vs. GOURI AMMA

JUDGEMENT

(1.) This appeal arises out of the judgment and decree in O. S.8 of 1952 on the file of the District Court of Mavelikara. Defendants 9 and 10 are the appellants.

(2.) Plaintiffs 1 and 2 are the children of Krishna Panicker deceased, while defendants 1 to 7 are the members of Krishna Panickers tarwad. The 1st defendant Kochukutty Amma is the daughter of his sister Lekshmi Amma, deceased. Defendants 6 and 7 are the children of the 1st defendant. The 1st defendant had an elder sister Parvathy deceased, whose children are the defendants 2 to 5. Krishna Panicker obtained from two senior members of the Cherukara tarwad a mortgage with possession under Ext. B dated 26-4-1088 for a sum of Rs. 2450/- in respect of 21 acres 83 cents of Sy. No. 501/1 of Kalloopara Village in Thiruvella Taluk. By Ex. C judgment dated 24-1-1105 in O S.148 of 1096 of the Kottayam District Court against Krishna Panicker as 1st defendant and others, certain junior members of the Cherukara tarwad obtained decree setting aside Ext. B mortgage on the ground that it was executed against the terms of a family udampadi and further it contravened the provisions of the Nair Act of 1088. The decree provided for recovery however on payment of the value of the improvements effected on the property from date of the mortgage. We are concerned in this suit with 15 acres of Ext. B mortgage holding and the value of the improvements thereon amounting to Rs. 1685-8 as.

(3.) This area of 15 acres which is scheduled to the plaint as item 1 was, at the date of Ext. C suit, in the occupation by permission, of Krishna Panickers sister Lekshmi and another member Sankaran Raman of his tarwad. They had accordingly been impleaded as defendants 6 and 7 in that suit. They did not raise any contest. On the death of Lekshmi, 6th defendant, pending that suit, her five daughters were impleaded as defendants 9 to 13. Parvathy, the mother of the defendants 2 to 5 here was the 9th defendant and Kochukutty the first defendant here was the 10th defendant. Soon after their impleading, those 9 and 10 defendants raised contention in Ex. C case that Ex. B mortgage did not appertain to Krishna Panicker alone but enured to the tarwad, having been taken in his name as manager thereof. Further they alone were in exclusive possession of and had effected improvements in a 15 acres area covered -by Ex. B, viz., item 1 herein and so the decree for redemption in respect thereof should be passed in their favour only. They appealed incidentally to the application of the doctrine of adverse possession as against Krishna Panicker, vide Ex I written statement dated 14-1 -1103. This case of independent right set up by his nieces was of course resisted by Krishna Panicker. But the court by Ex. C judgment gave decree as regards the improvement value on the 15 acres in question jointly in favour of the contending parties, viz., defendants 1, 9 and 10 in that suit leaving it to them to resolve their differences inter s& in separate suit. Krishna Panicker died in 1112. His children have now filed this suit for declaration of their title through their father and for recovery of possession of item 1 from defendants 1 to 7 and their alienees defendants 8 to 14 under Exs. F to P, with mesne profits for three years before suit and for the future. Plaintiffs also claim declaration that they are alone entitled to recover the value of improvements concerned, viz., Rs. 1685.8 as. as and when it is deposited into court. The plaintiffs laid their suit on 12-6-1952.