K RAMASWAMY NADAR Vs. PATHUMMAL

JUDGEMENT

(1.) THE first defendant in O.S.No.476 of 1978 on the file of the District Munsif's Court, Kuzhithurai is the appellant in the second appeal. THE respondents 1 and 2 are defendants 3 and 4 in the said suit. THE 3rd respondent in the second appeal is the plaintiff and respondents 4 and 5 in the second appeal are defendants 2 and 5 in the suit respectively. In the second appeal, for the sake " of convenience the parties are referred to by the nomenclature given in the suit.

(2.) THE plaintiff in O.S.No.476 of 1978 filed a suit for partition and redemption and his case as stated in the plaint is as follows: An extent of 73 cents in S.Nos.2228 and 2229-A in Kaliyal village described as A Schedule in the plaint was originally owned by one Thamarakulathu Matom. One Achutharu of the said Matom executed a mortgage and Kuzhikkanam in 1955 in favour of the first defendant over the suit properties and other properties. On the date of the said mortgage the first defendant was already in possession as per a lease deed and Kuzhikkanam of 1114 M.E. THE said Achutharu executed a superior mortgage in favour of one Kumara Pillai Parameswaran Pillai directing him to redeem the mortgage in favour of the first defendant. THE said Parameswaran Pillai instead of redeeming the mortgage assigned his right to the second defendant, the wife of the first defendant in 1971. In the meantime, in 1961, the first defendant executed a mortgage and Kuzhikkanam in favour of the plaintiff over an extent of 21 cents in S.No.2228 and 32 cents in S.No.2229-A. THE plaintiff subsequently purchased the equity of redemption in 1969 from the heirs of the mortgagor Achutharu and in the said sale the plaintiff was directed to redeem the prior mortgages. On 3.11.1971 the plaintiff sold 21 cents in the plaint A Schedule to the fifth defendant. THE said portion is described as B Schedule in the plaint. THE remaining extent is described as C Schedule and the plaintiff is in actual possession of 32 cents and he is entitled to recover possession of the balance of 20 cents from defendants 1 and 2. THE defendants 3 and 4 are in possession of a portion of the extent under the mortgagees, defendants 1 and 2. THE plaintiff is entitled to redeem the mortgage over the plaint C Schedule property. He filed O.S.No.820 of 1972 for redemption of the mortgage and it was decreed in his favour. In appeal the appellate court remanded the suit to the trial court and after remand the suit was dismissed on the ground that the present fifth defendant was a necessary party to the suit. THE Court, while dismissing the suit O.S.No.820 of 1972, recognised the right of the plaintiff to file a fresh suit for redemption after impleading of the necessary parties. In that suit, the present defendants 3 and 4 claimed right as Kudikidappukars. THE plaintiff, with a view to avoid a trouble and future litigation, agreed in that suit for allotting 0-04 cents to defendants 3 and 4 as kudiyiruppu and, therefore, now, he is entitled to claim recovery of possession of 16 cents in the C Schedule property after redeeming the mortgage over an extent of 48 cents. THE plaintiff also claimed a decree for partition of the C Schedule property.

(3.) THE trial court, on a consideration of the evidence on record, passed a preliminary decree in favour of the plaintiff for partition of 48 cents in C Schedule after deducting 4 cents for kudiyiruppu for defendants 3 and 4 and for redemption of the mortgage on deposit of Rs.63.35. THE trial court also granted a decree for recovery of possession of 0-16 cents from defendants 1 to 4. As against the judgment of the trial court the defendants 3 and 4 alone filed an appeal in A.S.No.52 of 1980 before the Sub-Court, Kuzhithurai. In the appeal, at the instance of defendants 3 and 4, a commissioner was appointed in I.A.No.751 of 1981 to measure the suit property in order to find out the exact extent covered by the two survey numbers 2228 and 2229-A. THE Commissioner submitted his report and plan, marked as Ex.C-1 and C-2 before the appellate court. THE parties to the suit proceeded on the basis that the area covered by the two survey numbers 2228 and 2229-A measures only 73 cents. But, the commissioner, on actual measurement, found an excess extent of 17 cents. As per the Commissioner's report, the area covered by S.Nos.2228 and 2229-A measures 90 cents. THEreafter, in the appeal, the plaintiff filed I.A.No.342 of 1982 for amendment of plaint claiming 65 cents as against 48 cents claimed in the original plaint and his prayer for amendment was allowed. THE plaint was accordingly amended on 15.7.1982. THE first defendant filed an additional written statement after the plaint was amended, contending that the commissioner has included within the suit survey numbers the portions of the property in the west owned by the first defendant and that the actual area of the suit property is only 73 cents. THE defendants 3 and 4 filed an additional written statement claiming title over the excess area over and above the extent claimed in the original plaint.