CHAITHU MOHAMED AND ANR. Vs. ENNASI AND ORS.

JUDGEMENT

(1.) This second appeal arises from the judgment and decree of the District Judge of Kanya -kumari in Appeal Suit No. 339 of 1960, which, in turn arose from the judgment and decree of the Subordinate Judge of Padmanabhapuram in Original Suit No. 4 of 1960, which was a suit for redemption of mortgage filed by the Appellants, the heirs of the original mortgagor. The relevant facts leading to the present litigation may be briefly stated.

(2.) The original predecessor -in -title of the Plaintiffs executed a mortgage in respect of the A schedule lands to Ibrahim Pillai and Hussain Pillai and put them in possession on 24 -9 -1071 M.E. (5th May 1896). Ibrahim Pillai and Hussain Pillai assigned their mortgage right to one Kama Pillai Meeran Pillai on 24 -10 -1072 M.E. (5th June 1897). Kama Pillai Meeran Pillai assigned his right under the mortgage to Defendants 1 to 4 and the ancestors of Defendants 5 to 21 on 7 -5 -1078 (22nd February 1902) under exhibit A -3. They in turn assigned their rights to the 22nd Defendant, who is the chief contesting Defendant, i.e., the Roman Catholic Church of Vallavila, under exhibit A -6, dated 2 -7 -1080 M.E. (1905 A.D.). The Plaintiffs' predecessors -in -title filed Original Suit No. 475 of 1121 M.E. (1946 A.D.), for the redemption of the mortgage of 1071 M.E. (1896 A.D.) impleading the mortgagees as Defendants 1 and 2 and the Vallavila Church as the 10th Defendant. In that suit, the Church contended that they were not in possession of the mortgaged property under the assignees of the mortgagees. That suit was dismissed on the ground that the church authorities were not in possession of the mortgaged property under the assignees of the mortgagees. The Plaintiffs' predecessors -in -title preferred an appeal (Appeal Suit No. 909 of 1952) to the District Court, Nagercoil, which was dismissed. Finally, when the matter was carried to the Travancore -Cochin High Court in second appeal (Second Appeal No. 173 of 1954) the dismissal of the suit was confirmed. Subsequently the Plaintiffs' predecessors -in -title filed Original Suit No. 71 of 1957 for redemption of the B schedule trees which also suffered the same fate both in the trial Court and the appellate Court. Thus the matter has become final in respect of the mortgage rights over A and B schedule properties as far as the Plaintiffs' predecessors -in -title are concerned.

(3.) Now the Plaintiffs who claim to be the heirs of the original mortgagor filed the present suit for redemption of the mortgage over A schedule property and for recovery of A and B schedule properties from the Defendants with mesne profits. Defendants 1 to 21 contended that they were not in possession of the mortgaged properties, that they were not aware of any mortgage created over the suit properties, that there was no relationship of mortgagor and mortgagee between them and the Plaintiffs and that in any event the suit was barred by res judicata and under Order II, Rule 2, Code of Civil Procedure . The 22nd Defendant repeated the old contentions urged by them in the previous proceedings and further contended that they were in possession of the suit property for nearly 100 years and thus they have perfected title by adverse possession, that the Plaintiffs had no right to sue, that the deed of 1071 M.E. was really a kuzhikanam deed and not a mortgage deed, that the suit was barred by limitation and adverse possession and that it was also barred by res judicata by reason of the decisions in Original Suit No. 475 of 1121 M.E. and Original Suit No. 71 of 1957. On these pleadings, the parties went to trial before the learned Subordinate Judge of Padmanabhapuram.