S M SAVITHRI BAYI Vs. KOTTAYI ACHUTAN

JUDGEMENT

(1.) This is an appeal against the order of the learned Subordinate Judge of South Malabar at Calicut remanding O.S. No. 373 of 1924 to tae District, Munsif of Vayitri for disposal.

(2.) The 9 respondent in appeal who is the legal representative of the 1 defendant is the appellant. The facts relating to this remand are these: The 1 defendant, the kanomdar of a house site, had demised it to the 3 defendant; the latter built a house on it and hypothecated it to the 1 defendant. The 1 defendant brought a suit, O.S. No. 464 of 1922 upon the hypothecation bond, obtained a decree and in execution of it purchased the house himself. When he tried to obtain delivery of possession of the house he was obstructed by the plaintiffs in the present suit who stated that the house was built with the tarward fund of the plaintiffs and of the 3 defendant, and not by the 3 defendant alone out of his own funds. The 1 defendant then applied for the removal of the obstruction in M.P. No. 905 of 1924 and the obstruction was ordered to be removed. As a consequence of this order the plaintiffs instituted the suit which has now been remanded for a declaration that the house was built with the tarward funds of the plaintiffs and defendants Nos. 2 to 8, that the decree obtained by the 1 defendant in O.S. No. 464 of 1922 is not binding upon them and that the order removing the plaintiffs resistance should be set aside.

(3.) In the meanwhile, the superior jenmi who had demised the land on kanom to the 1st defendant had brought O.S. No. 484 of 1925 on the file of the Principal District Munsif's Court of Calicut for redeeming the land, making the present plaintiffs and the present 1 and 3rd defendants parties to the suit and obtained a decree for redemption. The present 3 defendant was the 1 defendant in that suit; the present 3 defendant was the 31st defendant and the present plaintiffs were defendants Nos. 32, 34 and 35. It was held in that suit that the present 1 defendant was entitled to get the value of the house before redemption. It is now contended by the 1 defendant and by his legal representative that the plaintiffs claim to the suit house is res judicata by reason of the decision in O.S. No. 484 of 1923. The District Munsif agreed with this contention and dismissed the plaintiffs suit. The learned Subordinate Judge disagreed with the view of the District Munsif and remitted the suit for disposal on the merits.