UTHAMARAM NATHUSAM SAIT Vs. HUDE GOPALAKRISHNAYYA

JUDGEMENT

(1.) THE appellant in the second appeal is one Nathuram Sait, the plaintiff in O. S. No. 237 of 1949, on the file of the District Munsif's Court, Hosdrug (O. S. No. 71 of 1948 on the file of the District Munsif's Court, Kasargod ). He had brought the suit, praying for a permanent injunction restraining the first defendant, gopalakrishnayya, for entering, claiming to be the kuzhikanomdar, the suit land, s. No. 451/2, of West Eleri village, measuring 16 acres 40 cents, and containing a valuable pepper garden, and restraining defendants 2 and 3, Abdul Khader and abdul Rahman, from joining the first defendant in any trespass on the said land which Nathuram Sait claimed to be in his exclusive possession and enjoyment ever since 11-4-1937, when it was delivered to him through Court by P. W- 2, the amin, in the presence of P. W. 1, his agent. Nathuram Sait had filed O. S. No. 13 of 1826 on the file of the Sub Court, tellicheny, against the-Kooleri family, a family of Moplah Kuzhikanom-dars under the Palat tarwad, in respect of this land and several other lands, and had got a decree. In pursuance of that decree, he had filed R. E. P. No. 289 of 1927 for attaching the suit lands and other lands, claiming them to be kuzhikanorn lands of the Kooleri family. The suit land was attached in February 1928. One Shiba Ummabi, a junior member of the Kooleri family, filed a claim petition, Ex. A-5, claiming that the suit land was her separate property, and not the property of the Kooleri family, of which one Abdul Khader was the then ejaman. That claim petition was allowed by the Subordinate Judge. But the plaintiff took it in appeal, and the High Court, finally, by its order, dated 20-11-1934 (Ex. A-4) held that the suit land belonged in kuzhikanom to the Kooleri family, and not to Shiba Ummabi, and ordered the re-attachment of the land. It was accordingly re-attached. The plaintiff, from abundant caution, filed R. E. P. No. 81 of 1935 for bringing the suit land to sale. He also filed R. E. A. No. 262 of 1935, showing the correct survey number of the suit land as 451/2. When the lands. were brought to sale, the plaintiff bought them himself on 9-12-1936. Ex. A-6 is the sale certificate; and it includes the suit land as well as several other lands. On 11-4-1937, P. W. 2, the amin, delivered the suit land and other lands to the plaintiff's. agent, P. W. I. P. W. i had been directed by P. W. 2 to take the shanbhogue of the village to the spot, to be present at the delivery. P. W. 1 had reported to P. W. 2 that he was absent from the village and so, could not be taken. The Patel was present at the delivery.

(2.) MEANWHILE, on 25-12-1934, the first defen-dant's father obtained an oral lease from Shiba Ummabi under Ex. B-1, regarding the suit land. He was directed to clear the forest and plant pepper vines. According to D. W. 7, there was no pepper on the land in the beginning of 1935. According to P. W. 1, the plaintiff's agent, there was a compact block of 10 acres in the suit land covered by. pepper garden at the time of the delivery, and the rest of the suit land was forest. The kuzhikanom obtained by 'the first defendant's father from Shiba, under Ex. B-1 was only in respect of 10 acres. On 4-6-1935, a regular kuhzikanom maroupat, Ex. B-4, was executed by the first defendant's father to Shiba Ummabi in respect of the 10 acres, Ex, B-5 is a counter part thereof. On 9-9-1940, the first defendant's father got, under Ex. B-8, the jennam right in respect of the suit land from a member of the Palat tarwad, and he claimed to bave become the full owner of the suit land thereafter. Of course, the plaintiff does not admit the genuineness or bind-jng nature of Ex. B-8; but we are not concerned with that in this case.

(3.) IN the suit, vigorous contentions were raised by the first defendant. According to him, the plaintiff never attached the suit land in R. E. P. No. 289 of 1927 or R. E. P. No. 8. 1 of 1935, and that land was not brought to sale or purchased by the plaintiff, and it was merely included by mistake in the court sale certificate Ex. A6. He also contended that Ex. A-7 was a mere paper delivery and that the suit land was never really delivered by P. W. 2 to P. W. 1, the plaintiffs' agent. He said that he Avas all along in possession of this pepper garden and was never ousted out of it, and the pepper garden was never handed over to P. W. 1 by P. W. 2. He denied that the plaintiff was ever in possession of the suit land or any portion of it.