THEKKAMANNENGATH RAMAN ALIAS KOCHU PODUVAL Vs. KAKKASSERI PAZHIYOT MANAKKAL KARNAVAN AND MANAGER RAMAN BHATTATHRIPAD

JUDGEMENT

(1.) These two second appeals have arisen out of a suit brought by the Jenmi mortgagor to redeem Kanom mortgage. Various complicated questions chiefly relating (a) to the details of the properties mortgaged, (6) to the michavaram payable by the mortgageetenant (c) to the damages, if any, due to the mortgagee on account of the mortgagee s inability to get possession of some of the mortgaged properties and (d) to the compensation, if any, payable from trees of spontaneous growth to the mortgagee have to be dealt with in these two second appeals, one of which is by the plaintiff and the other by the 1st defendant s legal representatives. These questions might be thus stated in detail: 1. (a) Was the tank situated in the item 7 marked in the commissioner s plan (and described in the mortgage document Exhibit A as the boundary Mark between items 6 and 7 of that deed) included in the mortgage demise? (b) Has the Lower Appellate Court wrongly given a decree for the redemption of that tank also while deciding that the tank site is not included in the demise?

(2.) (a) Do those portions of the plaint mortgaged properties which were decided in the former suit 147 of 1890 to belong to a rival jenmi (38th defendant in that suit) and which are now enjoyed by the defendants 13, 32, 33, 44, 50 and 92 who claim to be sub-lessees of that rival jenmi really belong to the plaintiff? (b) Is that question res judicata against the plaintiff by the decision in that former suit? (c) Is the plaintiff estopped in any other manner from claiming redemption of those properties?

(3.) (a) Did the plaintiff by including those properties in the plaint demise of 1888 covenant with the 1st defendant that he had title to those properties? (b) In case it is found that the plaintiff had no title to those properties, is the 1st defendant entitled to claim damages from the plaintiff on account of the breach of the plaintiff s said covenant? (c) Had the 1st defendant knowledge on the date of Exhibit A of all the facts and was there in consequence no right in him to rely in his defence on any such covenant of title? (d) Is the 1st defendant precluded by acquiescence or waiver from claiming such damages? (e) Is the 1st defendant s claim for damages, barred by limitation? If it is not so barred, what is the amount of damages to which he is entitled?