UNNIKKATHIYA AND ORS. Vs. SANKARAN AND ORS.

JUDGEMENT

(1.) THIS second appeal arises from the decision of the Sub Court, Tirur in A.S. No. 34/1978 which was filed against the judgment and decree in O.S. 12/1976 before the Munsiff's Court, Parappanangadi. The suit was one for recovery of possession on the strength of title. The property was purchased by the Plaintiff from one Narayanan Nair in 1964. Narayanan Nair had verumpattom rights. The property was mortgaged to one Moideenkutty, brother of Defendants, on 29th January 1967 by which possession was also given. There is no document to evidence the mortgage. Moideenkutty was in possession till his death and thereafter Defendants are in possession. The mortgage is alleged to have been granted for a consideration of Rs. 225 and on condition to pay 30 paras of paddy, out of which 7 1/2 paras are to be adjusted towards interest and the balance of 22 1/2 paras to be delivered to Plaintiff during Makaram every year. Rent is alleged to have been paid till January 1967 and thereafter is in arrears. Defendants did not surrender possession as per demands made by Plaintiff and that necessitated the suit.

(2.) DEFENDANTS denied the mortgage as well as the possession of Moideenkutty. They contended that the property was taken on lease by 1st Defendant from Plaintiff on 25th June 1964 on payment of a munpattom amount of Rs. 200 and agreeing to deliver 20 paras of paddy every year. They claimed fixity of tenure.

(3.) THE learned Single Judge before whom the second appeal came up for hearing directed the appeal to be placed before a Division Bench in view of the conflict of views in the decisions in, 1979 K.L.T. (S.N.) 47, Rathna Bai v. Rajeeiva, 1981 K.L.T. (S.N.) 62, and B. Rajeevi v. Thyampanna Shetty : A.I.R. 1984 Ker. 222 : 1984 K.L.T. 536. That is how the matter is now before us.