VELAYUDHA PILLAI Vs. KRISHNAN ASARI

JUDGEMENT

(1.) Even though this second appeal by the defendant is admitted on as many as seven questions of law formulated in the memorandum of appeals, the only point urged before us is on the question of res judicata covered by the order of reference of the case for decision by a Division Bench.

(2.) The suit is for redemption of Ext. A1 mortgage executed by one Krishnan Asary to the defendant on 20-11-1958. Krishnan Asary died in 1964 and the plaintiff sues as his legal heir. Several pleas were raised in defence to the suit. It is not necessary to advert to all such pleas except the following : (1) There was a previous suit O.S. 586 of 1967 on the file of the Munsiff's Court, Neyyattinkara for redemption of Ext. A1 mortgage filed by the two wives and nine children of the deceased Krishnan Asary and that suit was dismissed as per Ext. 82 judgment on the finding that the transaction evidenced by Ext. A1 being an otti kuzhikanam is a lease and not a redeemable mortgage. The present suit is accordingly barred for the reason of the decision in O.S. 586 of 1967. (2) The property did not belong to Krishnan Asary alone, but also to his brothers and the rights of the brothers have been acquired by the defendant as per Exts. B7 to B9. The plaintiff is not therefore entitled to redeem Ext. A1. (3) The transaction evidenced by Ext. A1 is a lease and the defendant is entitled to fixity of tenure under the Kerala Land Reforms Act.

(3.) The issue relating to fixity of tenure was referred to the Land Tribunal under S.125(3) of the Kerala Land Reforms Act and the Tribunal returned a finding and (that) the transaction is not a lease and the defendant is not entitled to fixity of tenure. The trial court accepting the finding of the Land Tribunal held that Ext. A1 is a redeemable mortgage. The plea of res judicata based on Ext. B2 judgment was rejected on the ground that the plaintiff was not a party to the suit O.S. 586 of 1967. The suit was however dismissed for the reason that the defendant had by assignment acquired the shares of other co-owners and the remedy of the plaintiff was only to sue for partition and redemption of his share in the suit property. In appeal by the plaintiff the lower appellate court has reversed the decision of the trial court and has decreed the suit for redemption of Ext. A1 and for recovery of possession of the property. The appellate court held that Ext. A1 mortgage was executed by Krishnan Asary alone. The defendant had not acquired any part of the equity of redemption under Exts. B7 to B9, the integrality of the mortgage had not been broken up and the plaintiff as a legal heir of the deceased Krishnan Asary is entitled to redeem the mortgage. The question of res judicata has not been considered by the lower appellate court.