KRISHNAN GOVINDAN Vs. CHINNAMMA CHELLAMMA

JUDGEMENT

(1.) This appeal is by the 2nd defendant against the judgment and decree in O.S.57 of 1124 on the file of the District Court, Trivandrum, allowing the suit.

(2.) The plaint schedule properties 3 acres 57 cents in all, consist of portions of four survey numbers, 439/2, 439/1, 438/3 and 438/4 of the Nemom Pakuthy and held under Kandukrishi tenure. The plaintiffs predecessor-in-interest, Padmanabha Panicker obtained, first a mortgage Ext. B dated 8-4-1115 and then a sale Ext. A dated 9-4-1118 of these properties. Alleging an attempt at trespass and consequent possibility of breach of peace, Padmanabha Panicker initiated proceedings under S.145 of the Crl. P. C. before the First Class Magistrate, Neyyattinkara, as M.C. 16 of 1118 against the defendants 1 and 2 and others. These proceedings ultimately ended against him, vide Ext. M dated 26-1-1121. Subsequently on 28-4-1121 he field suit O. S.67 of 1121 before the District Court of Trivandrum, against the defendants 1 and 2 and their relations and alienees, for declaration of his title to and recovery of properties with mesne profits, on basis of a completed trespass following Ext. M order, which also was attacked as incorrect. The suit was however, not accompanied by sanction of Government as required under S.8 of the Travancore C. P. C. in respect of suits of the type concerning Kandukrishi landS.On preliminary objection raised by the defendants therefor, the suit was dismissed on 1-7-1123. Padmanabha Panicker died pending this suit. The requisite sanction was obtained by the plaintiffs on 20-3-1124 and soon thereafter on 30-3-1124, they filed this suit adopting the same basis as in O.S. 67 of 1121. The 2nd defendant and the 17th defendant (alienee of portion of item 2) alone contested the suit, setting up for the purpose, rival title in themselves and their predecessors. They also pleaded adverse possession and limitation in any event. The court below in elaborate judgment, found all the issues in plaintiffs favour and so decreed the suit. Hence this appeal by the 2nd defendant as abovesaid. And plaintiffs have filed objection memorandum in respect of mesne profits disallowed.

(3.) The 2nd defendant in his appeal has raised only one question, viz , as to limitation for the suit, but he put in two aspects-firstly Art.142, Limitation Act, in that the plaintiffs have not proved possession within 12 years of the suit, and secondly Art.47 of the Limitation Act in that the suit has been filed more than 3 years after Ext. M order. The second aspect was not raised by him in the court below and so has not been considered in the judgment under appeal. Dealing with the first aspect the court below found that Munavari Sahib the original owner under registry from the Government, and his heirs following him, were in continuous undisturbed possession of the entire survey numbers and other properties covered by the registry down till 20-11-1095, the date of their first alienation under Ext. T, of portion thereof and that the heirs of Ext. T vendee were able to and did give possession to Padmanabha Panicker of the plaint properties under Ext. B mortgage herein on 8-4-1115, within 12 years of this suit. There had indeed been a prior litigation in O.S. 1211 of 1109 of the Trivandrum Munsiffs Court in respect of item 1 where defendants 1 and 2 had set up their rival title and possession as against Ext. T vendee and had failed right up to the High Court, vide Exts. P, Q and R judgments The defendants could therefore, according to the learned Judge, have no better footing as regards items 2 to 4 included in compact block along with item 1. The learned Judge also found that the 2nd defendant was estopped from questioning the effectiveness of Ext. B in conferring possession to Padmanabha Panicker because, on its very date, its executants had executed Ext. C sale in respect of their balance area in the survey numbers to Pw. 2 nephew of the 2nd defendant and the 2nd defendant was an attestor to both Exts. B and C.