BAVUNNI Vs. KOYAMMUD HAJI

JUDGEMENT

(1.) Plaintiff was admittedly in possession of the suit property under Alengad Samooham, the ultimate jenmi. He mortgaged it to the first defendant on 23-2-1970 under Ext. A1 for Rs. 1,000/-. Ext A1 provided for payment of michavaram to the jenmi and surplus profits to the plaintiff. The document recited that possession of the property with the standing crops was given to the first defendant. It also enabled the plaintiff to set off arrears towards the mortgage amount. The suit for redemption was filed in 1975 alleging that the entire mortgage amount is wiped off by the arrears and more amounts are due. Second defendant is the brother of the first defendant. He was impleaded because of the stand taken by first defendant in the reply to the suit notice, following some false document created in his favour, that he is in possession. First defendant denied having obtained possession under Ext. A1. He, therefore, disowned liability for michavaram and excess profits and claimed the mortgage amount with interest. Second defendant claimed to be in possession having obtained in 1970 the rights of one Ammunhi Mohammed, who is said to have been in possession as lessee of the plaintiff for the past several years. He claimed fixity of tenure.

(2.) The tenancy claimed by the second defendant was referred to the Land Tribunal. Before the Land Tribunal, there was S. M. P. No. 2515 of 1976 in favour of the plaintiff and against the jenmi for purchase of his rights. While that was pending, second defendant filed O. A. No. 4 of 1978 against the jenmi as well as the plaintiff and first defendant for purchase of their rights claiming to be the cultivating tenant. Both the proceedings were tried together and disposed of by a common order on 30-5-1979 allowing S. M. P. No. 2515 of 1976 in favour of the plaintiff and dismissing O. A. No. 4 of 1978 on the finding that second defendant is not a tenant. Instead of conducting an enquiry on the reference, the Land Tribunal forwarded the common order as answer to the reference. Before the Trial Court, the plaintiff and first defendant adduced evidence regarding possession. Trial Court accepted the order of Land Tribunal and found that second defendant is not a tenant. On the evidence adduced before it, the finding was that first defendant is in possession. A preliminary decree for redemption was passed on the finding that the mortgage amount is wiped off by the arrears and making the first defendant liable for mesne profits.

(3.) First defendant alone appealed. Second defendant satisfied himself with filing a memorandum of cross objection alone. Appellate court, on a detailed analysis of the evidence, agreed with the Trial Court in its finding that first defendant is in possession pursuant to Ext. A1 and the claim of the second defendant is not correct. The cross objection was dismissed on the finding that it being directed against the plaintiff, who is only a corespondent, is not maintainable. Second Appeal No. 354 of 1984 is by the first defendant and second appeal No. 360 of 1984 by the second defendant. These second appeals present certain interesting questions of law.