VARGHESE CHACKO Vs. SIVASANKARA PILLAY

JUDGEMENT

(1.) Defendants 2, 4, 7 and 9 are the appellants. The plaint property 4 acres and 30 cents in extent, originally belonged to the plaintiffs tarawad which became divided into three branches under a partition deed of 1043. The plaint property was then left in common for the three branches of the tarawad. The common Karanavan was put in possession of the same. Krishnan Parameswaran who was the seniormost male member of the tarawad was in possession of this property till 1080. The next Karanavan Parameswaran Govindan was in possession thereafter but he executed Ext. A Melvaippa deed on 14.12.1080 to the 5th defendant and one Varghese the deceased father of defendants 1 to 4. Parameswaran Govindan subsequently instituted OS 24 of 1082 for a declaration of his exclusive title to the property. This suit was dismissed by the District Court of Alleppey and in appeal by the High Court. One Krishnan Raman who was the representative of one of the three branches filed a suit OS 684 of 1085 in the Munsiffs Court of Alleppey for partition of this property after setting aside Ext. A to the extent of his 1/3 share. In that suit the Melvaippa holder were defendants 5 and 6. The remaining two branches were represented by defendants 1 to 4. The Melvaippa deed was set aside but the relief for partition was denied as all the properties left in common had not been included in this suit for partition. Exts. C and I are the judgment and decree in that case. Then Krishnan Ramans branch instituted OS 37 of 1091 in the District Court of Alleppey for partition of all the properties left in common. The Melvaippa holders were also impleaded in the case. Ignoring the Melvaippa deed Krishnan Raman was given among other properties 1/3 of the plaint property with past and future mesne profits 56 cents out of the plaint property were however excluded as the same had already been sold in revenue auction for arrears of tax. The present plaintiff who is a member of another branch stated that in a partition in his branch the right over the plaint one third of Survey Number was allotted to his share. Similarly the 6th defendant who was the member of the remaining branch obtained the right over the balance in a partition in his branch. Thus the plaintiff and the 6th defendant were entitled to the plaint property which was the remaining 2/3 share after meeting the claims of Krishnan Ramans branch. He had no objection to the 6th defendant if willing be added as a plaintiff. At any rate he stated that he was entitled to recover possession of the entire property with past and future mesne profits. He also stated that in case his contention, that Ext. A was not binding on him or the plaint property was not upheld he might be allowed to recover possession of the property on payment of a proportionate amount charged under

(2.) The appellants had filed two joint written statements. Their main contention was that since Parameswaran Govindan had asserted his exclusive title to the property in Ext. C suit the present suit was barred by limitation and adverse possession, that the present plaintiff was entitled only to 2/9 share in the plaint property, that he could not get possession of anything more than that, that he was not to be allowed to recover possession of the 6th defendants share, that they were not liable to pay the Sirkar tax due on the property that from 1087 they were paying such tax, that before redemption they were to be given the tax thus paid by them till now, that with the execution of the decree in OS 37 of 1091 (Ext. III is the judgment in that case) they lost 1/3 of Ext. A property, that they were therefore to be compensated for the loss of that 1/3 before the plaintiff was allowed to recover possession of the property on payment of the mortgage amount and that the plaintiff was not entitled to any relief.

(3.) The plaintiff replied by saying that he was entitled to recover possession of the plaint property without paying any amount as Ext. A had been set aside in Ext. C case, that Ext. C decision was binding on the defendant and the plaint property, that his branch was entitled to 1/3 of the entire property for Parameswaran Govindan, to whom 1/9 of the property was according to the defendants said to belong, was only a member of his branch, that whatever right Parameswaran Govindan had over the property lapsed to his branch, that all the members of the tarawad had conceded the rights of the plaintiffs branch to 1/3 of the property that the defendants were never accounting for the mense profits, that they were liable to pay the tax and that the mortgage amount, the Sirkar tax said to have been paid and the mesne profits claimed as damages by the defendants on account of the loss of 1/3 of the property were not allowable to the defendants.