PARATTAKATH MAYAN AND ORS. Vs. PALAKKOTANTEAKATTE MAMMAD KUNHI

JUDGEMENT

(1.) THE defendants are the appellants. The respondent instituted the suit out of which this second appeal arises for a perpetual injunction restraining the defendants from interfering with his possession of the plaint properties in any manner. He also prayed in the alternative that if the defendants were found to be in possession of any of the items of the property a decree for possession and mesne profits should also be granted in his favour. The defendants raised the pica that the plaintiff had no title to the property.

(2.) IN order to appreciate the contention of the defendants it is necessary to state a few facts. The property in suit originally belonged to the first appellant Paratlakath Mayan. He assigned the properties to his wife. Subsequently the wife died and it is alleged that the first appellant and appellants 2 to 5 his children became entitled to the property as the heirs of his deceased wife. In 1926 the first appellant as guardian of the minor children executed a kanom deed Ex. P -5 for a sum of Rs. 3,900 in favour of one Assan. Under this deed the mortgagee was entitled to be in possession and enjoyment of the properties. As a result of certain transactions, the details of which are not relevant for the purpose of this second appeal, the plaintiff that is the respondent in the second appeal, became entitled to the interest of the kanomdar. He instituted the suit on the allegation that the defendants -appellants were attempting to trespass on the property and that they should be prevented.

(3.) IN the suit several issues were framed by the learned District Munsiff; but the suit was disposed of on the preliminary ground that the defendants were not entitled to let in evidence to prove the arrangement pleaded by them in paragraph 3 of the written statement. This plea, it was said, amounted to a variation of the terms of the mortgage and was therefore hit by Section 92 of the Evidence Act. This contention urged on behalf of the plaintiff was accepted by the learned District Munsiff and also by the learned Subordinate Judge on appeal and the plaintiff's suit was decreed without any trial.