MANGINA VENKATASWAMI Vs. NULI MANIKYAM

JUDGEMENT

(1.) This is an appln under Article 133 of the Const Ind for leave to appeal to the S. Ct against the decree & judgment of this Ct dated 25-1-1950 in App, No. 377 of 1948.

(2.) The trustee of Sri Chenna Kesavaswami Temple instituted O. S. No. 73 of 1946 on the file of the Ct of the Subordinate Judge of Ellpre against several defts for recovery of possession of certain properties & for mesne profits. The suit comprised of various items; but before the trial, the pltf compromised with some of the defts & the suit was disposed on the merits only against defts 1 to 6 & 17 to 28. Their claim related to items 1 & 7 of the plaint schedule. The case of the pltf was that the lands in question belong to the deity & the mtges effected by the archakas were invalid & therefore the pltf was entitled to recover possession of the same with mesne profits. Deft 5 who is the son of the mtgee under Ex. B. 1, one of the impugned mtges' raised the plea that he acquired a right by prescription, the mtgee's right. The Subordinate Judge decreed the suit in respect of both the items. In appeal, this Ct confirmed the decree of the Subordinate Judge in regard to item 7 but in respect of item 1 held that deft 5 acquired a right to the mtge by prescription. In the result, we directed the lower Ct to give a decree for redemption after determining the sums due to the mtgee under Ex. B. 1. The effect of our judgment is that the pltf obtained a decree for redemption in respect of item 1. His title to that item was not negatived & his right to possession was conceded, & he was held entitled to recover possession after discharging the mtge. The pltf has filed this appln for leave to appeal to the S. Ct.

(3.) The petnr argues that he is entitled to leave under Article 133(1) of the Const. This Article runs as follows: "1. An appeal shall lie to the S. Ct from any judgment, decree or final order in a civil proceeding of a H. Ct in the territory of India if the H. Ct certifies