PARATTAKATH MAYAN 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.) The main plea of the defendants to this suit is contained in paragraph 3 of the written statement, the substance of which is that after the kanom was created in favour of Assan under an arrangement with the kanomdar the first defendant himself was holding the property in his possession and was paying to Assan the balance of the collections remaining in his hands after meeting the expenses towards the amount of interest under the kanomdeed, the interest thereon being 10 per cent, per annum. This arrangement was acted upon and there was according to the defendants a final settlement of accounts on the 11 April 1928, in respect of the value of pepper supplied to Assan during the years. 1926-27 and 1927-28. On looking into the accounts it was found that a sum of Rs. 1,850-4-7 was repayable to the first defendant and that by an agreement between the parties this amount was to be adjusted against the amount payable to the said Assan's nephew Mammad under the kanom kuzhikkanam deed executed in his favour by the first defendant's father. Thus according to the plea of the defendants the entire amount due under the kanom deed was fully discharged and ever since the properties were held in undisputed possession and enjoyment of the first defendant along with defendants 2, 3,4 and 5.