PADMANABHA PILLAI Vs. BHASKARAN

JUDGEMENT

(1.) This appeal is directed against the remand order in A. S. No. 38 of 1980 of the District court, Trivandrum.

(2.) The facts can be summarised as follows: The property of which the suit property was a portion originally belonged to Ayyan Velutha. He executed Ottikuzhikanam deed in favour of Ceelia Ummal on 1-2-1062. The mortgage right devolved on one P.K. Mohammed Ali. Velutha Ayyan, a heir of Ayyan Velutha executed another Ottikuzhikanam in 1077 in favour of P. K Mohammed Ali in renewal. The mortgage right was assigned in favour of Mytheenkunju under Ext. D in 1085 However, in 1113 Mohammed Ali executed Ottikuzhikanam which under Ext. I assignment of 1119 came to vest in the defendants. Meanwhile Velutha Ayyan and his children under Ext. H of 1089 sold the properties to Aysha Ummal, who in turn, sold her right in 3 03 acres of land in favour of the plaintiffs under Ext. A of 1120. Plaintiffs along with Aysha Ummal filed e suit, O. S. No. 1392 of 1120 for redemption of the mortgage. The suit was decreed. At the stage of execution the property involved therein except the present suit property was delivered. In regard to the present suit property (2/3 of 19 cents in survey no. 1879/6- i.e., 12 2/3 cents) the guardian of minor second defendant offered obstruction. The second defendant was claiming possession under the Otti of 1113. The Trial Court upheld the obstruction. Thereupon the plaintiffs filed the present suit for declaration of their title to the suit property and recovery of possession with mesne profits.

(3.) The second defendant in his written statement contended that the decree was not binding on him as he was not represented in the suit, that the suit property did not belong to Ayyan Velutha, that it was government land not included in the plaintiffs' document or prior documents relied on by the plaintiffs, that P. K. Mohammad Ali continued to be ia possession after the execution of Ext. D assignment of 1085 and be executed a mortgage deed in 1113 in favour of the predecessor of the second defendant and the plaintiff's right, if any, is barred by limitation and adverse possession,