IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 SA.No. 883 of 1999(E) -------------------------- AS.209/1990 of ADDL.DISTRICT COURT,KOTTAYAM OS.504/1986 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/APPELLANT/1ST DEFENDANT ------------------------------------------------- *1. MADHAVAN NAIR, S/O.RAMAN NAIR, MATTATHIL VEEDU, ITHITHANAM MURI, KURICHY VILLAGE.(DIED.LR'S IMPLEADED) * ADDL. APPELLANTS 2 TO 9 IMPLEADED 2. C.M.OMANAKUTTAN NAIR, S/O.LATE MADHAVAN NAIR, MATTATHIL VEEDU, ITHITHANAM MURI, KURICHY VILLAGE. 3. C.G.PANKEYAMMA, W/O.LATE MADHAVAN NAIR -DO- -DO- 4. C.M.VIJAYAMMA, D/O.LATE MADHAVAN NAIR -DO- -DO- 5. C.M.SANTHAMMA, D/O.LATE MADHAVAN NAIR -DO- -DO- 6. C.M.RUGMINY, D/O.LATE MADHAVAN NAIR -DO- -DO- 7. C.M.SUMATHY KUTTY, D/O.LATE MADHAVAN NAIR -DO- -DO- 8. C.M.RAJAMMA, D/O.LATE MADHAVAN NAIR -DO- -DO- 9. C.M.RADHAMANY, D/O.LATE MADHAVAN NAIR -DO- -DO- * AADL. APPELLANTS 2 TO 9 ARE IMPLEADED AS THE LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DATED 12/12/2005 IN I.A.NO.2302/2005. BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE ADV. SRI.P.GOPAL svs ..........2/-... ...2... SA.NO.883/1999 RESPONDENT(S):RESPONDENTS 1,3,4 ADDL.RESPONDENTS 5 TO 9 PLAINTIFF DCT. 3 TO 11. ------------------------------------------------------------------------------ **1. KARUNAKARAN NAIR, S/O.AYYAPPAN PILLAI, PADINJARE CHIRAPARAMBIL, MADAPPALLY CHIRA, ITHITHANAM KARA, KURICHY VILLAGE.(DIED.LR'S IMPLEADED) 2. JOSHUA JOSEPH, PUTHENVELIL VEEDU, ITHITHANAM MURI, KURICHY VILLAGE. 3. SARADA PUTHUPARAMBIL VEEDU, ITHITHANAM MURI, KURICHY VILLAGE. 4. KUNJAMMA, PATTADATHARA, PALLAM KARA,NEAR PAKKIL JUNCTION, NATTAKOM. 5. GRACY, PATTADATHARA, PALLAM KARA,NEAR PAKKIL JUNCTION, NATTAKOM. 6. MOLLY, PATTADATHARA, PALLAM KARA,NEAR PAKKIL JUNCTION, NATTAKOM. 7. MERCY,PATTADATHARA, PALLAM KARA,NEAR PAKKIL JUNCTION, NATTAKOM. 8. JOY,PATTADATHARA, PALLAM KARA,NEAR PAKKIL JUNCTION, NATTAKOM. ** ADDL. RESPONDENTS 9 TO 19 IMPLEADED 9. CHEMBAKAKUTTY AMMA, W/O. KARUANAKARAN NAIR, 'SREE SAILAM', PADINJARE CHIRAPARAMBIL, MADAPPALLICHIRA, SACHIVOTHAMAPURAM P.O. ITHITHANAM KARA, KURICHY VILLAGE. 10. GOPALAKRISHNAN NAIR, S/O. -DO- -DO- 11. VIJAYAKUMARAN NAIR, S/O. -DO- -DO- 12. MOHANA KUMARAN NAIR,S/O. -DO- -DO- 13. RAJAKUMARAN NAIR,S/O. -DO- -DO- 14. RANJAKUMARAN NAIR,S/O. -DO- -DO- 15. OMANAKUMARI, D/O. -DO- -DO- svs ........3/-.... ...3... SA.NO.883/1999 16. SREEKUMARAN NAIR,S/O. -DO- -DO- 17. PRASANNAKUMARAN NAIR,S/O. -DO- -DO- 18. JAYASREE,D/O. -DO- -DO- 19. AMTAL,S/O. -DO- -DO- ** ADDL. RESPONDENTS 9 TO 19 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT AS PER ORDER DATED 25/07/2003 ON C.M.P. NO.1557/2002. R1, 9 TO R16 BY ADV. SRI.C.D.JOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.2477/1999 IN S.A. NO.883/1999 DISMISSED 25/05/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ---------------------------- S.A.No. 883 of 1999 --------------------------------- Dated this the 25th day of May, 2011 JUDGMENT The first defendant in O.S.No.504 of 1986 before the Munsiff's Court, Changanacherry, who has suffered a decree for redemption at the hands of both the courts below is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The redemption was sought for in relation to Ext.A1 mortgage deed dated 3.11.1950. The extent of property involved is 5 cents in survey No.533/1 A of Kurichi village. It forms part of 25 cents of land which originally belonged to one Pathrose Ouseph. The devolution by which the plaintiff as well as the first defendant had come into lease hold right in respect of the respective property narrated in detail in the plaint. Suffice to say that the plaintiff claimed that he had obtained assignment of equity of redemption in relation to suit property and he was entitled to redeem the property from the first defendant. S.A.No. 883 of 1999 2 3. The first defendant resisted the suit on various grounds. He claimed fixity of tenure. It is also pointed out that the plaintiff had not obtained any right to redeem the mortgage and finally it is also contended that the first defendant had not come in the possession of the property by virtue of the document relied on by the plaintiff and even before that document he has been in possession and enjoyment of the property. On these grounds, he prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A10 from the side of the plaintiff. Contesting defendant was examined as DW1 and Ext.B1 was marked. Ext.C1 is the commissioner's report. The trial court on an evaluation of the evidence found the contention of the first defendant wholly unsustainable both on facts and in law and decreed the suit and a preliminary decree was passed. The aggrieved first defendant carried the matter in appeal as A.S.No.209 of 1990 before the District Court, Kottayam. The lower appellate court on an independent evaluation of the S.A.No. 883 of 1999 3 material before it on the basis of contentions raised, found that no grounds were made out to interfere with the judgment and decree of the trial court. Accordingly, the appeal was dismissed. 5. Notice is seen issued on the following substantial questions of law arises for consideration: i. Whether the plaintiff can be allowed to recover possession of the plaint schedule property from the first defendant in the instant suit, when it is clear from the documents of title in favour of the plaintiff and his predecessors in interest and which are relied on by the plaintiff that the mortgagee had not been given possession of the mortgaged property. ii. Is not the plaintiff bound by the admissions in Exhibits A3, A4, A5 and A6 that the mortgagee had not got possession under the mortgage deed sought to be redeemed by the plaintiff. iii. Are the Courts below justified in overlooking material admissions made by the plaintiff and his predecessors in interest in Exts. A3, A4, A5 and A6 ? iv. Is not the finding that the first defendant is in possession under the mortgage the result of gross misreading of Exts.A3, A4 and A6 ? v. Is the finding of the Courts below that the first defendant is in possession under the mortgage sustainable in the light of the clear statement in Ext.A6 that the vendee under Ext.A6 (Mortgagee under Ext.A1) gets possession of the portion of the mortgaged property purchased by him only on the S.A.No. 883 of 1999 4 date of Ext.A6 namely, 03.03.1976. vi. Is the courts below justified in allowing the plaintiff to recover possession of the said property in the facts and circumstances of the case. 6. At the time of argument the learned counsel appearing for the appellant raised mainly two contentions for consideration. One of the contention is that the possession of the defendant could not be traced to Ext.A9 and that the possession was under a different arrangement and he is entitled to fixity of tenure. The second contention is that the document relied on by the plaintiff does not enable him to redeem the property or in otherwards contention is that there is no right of redemption mentioned in his document. Therefore, it is contented that both the courts below were not justified in decreeing the suit and have erred both on facts and in law. 7. Per contra, the learned counsel appearing for the respondent pointed out that the above two contentions are no basis or foundation what the mortgagor can assign is only equity of redemption that has been done as per Ext.A5 document. It is idle for the appellant to contend that no right of redemption was S.A.No. 883 of 1999 5 granted under Ext.A5. The other contention is that since the claim of tenancy right had been given up at the trial stage itself. Further, the first defendant was unable to prove that he was in possession by virtue of some other arrangement as claimed by the appellant. 8. After hearing both sides, it is felt that the submissions made by the learned counsel for the respondent have considerable force. Both the courts below have considered the various aspects raised by the appellant and found them to be untenable. 9. Ext.A1 mortgage deed is not denied. It is also not denied that by virtue of Ext.A5, the plaintiff have obtained right over the suit property. The contention is that Ext.A5 does not specifically authorize the redemption of the mortgage. One fails to understand this contention. The mortgagor after executing a mortgage has only the right of equity of redemption left and there need not be specific recital in the document of assignment by the mortgagor that the assignee is entitled to redeem the mortgage. Both the courts below have entered not committed an S.A.No. 883 of 1999 6 error in holding so. 10. As regards the second contention, that also is equally without force. The claim of the appellant was that he had taken the property on lease for commercial purpose and had put up a structure and conducting a business. In fact the claim, fall within the ambit of Section 106 of the Kerala Land Reforms Act. However, it is seen that the said contention was given up at the time of hearing before the trial court as evidenced by paragraph 7 of the judgment of the trial court. It is seriously contended on behalf of the appellant that Exts.A3, A4 and A6 made specific mention of the right of redemption whereas Ext.A5 did not do so. It is also contended that there is nothing to show that the possession was actually handed over. Even assuming that as already stated Ext.A5 did not specifically stated that the plaintiff is entitled to redeem, as already noticed he got assignment of equity of redemption. It is futile for the appellant to contend that by virtue of various documents possession was not obtained. Both the courts below have considered the issues in considerable detail. No substantial questions of law arises for S.A.No. 883 of 1999 7 consideration in the second appeal. There is nothing to show that the findings of the courts below are either perverse or unwarranted by the evidence on record. The result is that the appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln