CHELAKOTE RAMA KURUP Vs. CHELAKOTE SHEKARA KURUP

JUDGEMENT

(1.) THE suit is to eject defendants Nos. 7 to 9 from possession. THEy hold the properties sued for, under a mortgage with possession granted by defendants Nos. 1 to 5. Defendants Nos. 1 to 5 are members of the same Tarwad as the plaintiff, and he is the Karnavan. In a former suit, defendants Nos. 1 to 5 and other members of the Tarwad sued as plaintiffs to recover the same properties that are now sued for, from the members of a Tavazhi on the ground that the alienation to the Tavazhi was invalid. THE present plaintiff, as the 13 defendant, supported the Tavazhi and also raised the contention that Anandravans could not sue for possession. THE claim of the Tavazhi was negatived. THE contention that the Anandravans could not claim possession was also overruled. A decree was passed that the plaintiffs were to get possession on behalf of the Tarwad. THE plaintiff, who was the 13 defendant in the former suit, bases his suit on the former decree and claims possession as the only person entitled to represent the Tarwad until legally removed by the former decree-holders. It is argued that this claim is res judicata. No question was raised in the former suit as to whether the Karnavan had forfeited his right to possession. It would be anomalous to hold that certain members of a Tarwad, who chanced to combine in a suit for possession because the Karnavan would not sue, and obtained a decree for the Tarwad, could thereby permanently acquire the right to possession on behalf of the Tarwad against the Karnavan who is not removed from his office. We do not feel bound to construe the former decree as practically removing the Karnavan from his position as regards the suit properties. THE present suit, therefore, practically based on the right created by the former decree cannot fail.

(2.) BUT the plaintiff says defendants Nos. 7 to 9 claim to be mortgagees with possession from defendants Nos. 1 to 5. It is not alleged that the right to possession under it has terminated. We are unable to hold that a mortgage with possession granted by or on behalf of the successful decree-holders in the former suit is altogether invalid. They were entitled to hold possession of, and deal with, the properties in the customary way until the plaintiff claimed possession from them. It appears to us, therefore, that the plaintiff cannot eject defendants Nos. 7 to 9 from possession. We dismiss the second appeal with costs.