IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 RSA.No. 454 of 2004() --------------------- AS.36/1996 of DISTRICT COURT, PATHANAMTHITTA OS.319/1993 of MUSNIFF COURT,ADOOR .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------- 1. ARAVINDAKSHAN PILLAI, KUTTIPLAVIL VEEDU, PAYYANALLOOR MURI, PALAMEL VILLAGE, NOORANADU, ALAPPUZHA. 2. KRISHNA PILLAI HARIKUMAR, KUTTIPLAVIL VEEDU, PAYYANALLOOR MURI, PALAMEL VILLAGE, NOORANADU, ALAPPUZHA. 3. USHAKUMARY, KUTTIPLAVIL VEEDU, PAYYANALLOOR MURI, PALAMEL VILLAGE, NOORANADU, ALAPPUZHA. BY ADV. SRI.SEBASTIAN PHILIP RESPONDENT(S): RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. SANKARAN VALIYATHAN, THOTTATHIL VEEDU, THONNALLOOR MURI, PANDALAM. 2. UNNIKRISHNAN VALIYATHAN, SREENILAYATHIL VEEDU, THONNALLOOR MURI, PANDALAM VILLAGE. ADV. SRI.M.NARENDRA KUMAR FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14 / 6/ 2011 THE COURT ON 14/06/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 454 OF 2004 =========================== Dated this the 14th day of June,2011 JUDGMENT Plaintiffs in O.S.319/1993 on the file of Munsiff Court, Adoor are the appellants. Defendants are the respondents. The suit was filed for a declaration that the mortgage decree in O.S.259/1974 on the file of Munsiff Court, Mavelikkara is not valid or binding on the rights of the appellants and to declare the absolute right of the appellants to the plaint schedule properties without any prayer for consequential relief. Plaint schedule properties admittedly originally belonged to Velayudhan, Raman and others. They created Ext.A1 mortgage in 1069 in favour of Narayanan, Madhavan, Vallyathan and others. Subsequently in execution of the decree in O.S. 51/1119 against the mortgagors, the right of equity of R.S.A.454/2004 2 redemption was sold in court auction. Under Ext.A4 sale deed, the right obtained by the auction purchaser was purchased by Narayana Pillai Krishna Pillai. The appellants are the legal heirs of Narayana Pillai Krishna Pillai. The mortgagee under Ext.A1 mortgage created a sub mortgage by registered mortgage deed No.2883/1955 in favour of Vasu Pillai. Subsequently Vasu Pillai assigned his right under the sub mortgage in favour of Narayana Pillai Krishna Pillai under Ext.A6. Though Ext.A6 was styled as a release deed, in law it could only be an assignment of the right of Vasu Pillai, the mortgagee under the 1995 sub mortgage. As per Ext.A5 decree in O.S.881/1119 the properties of the mortgagee under Ext.A1 mortgage were divided who obtained the right in respect of the plaint schedule properties under Ext.A5 decree, instituted O.S.259/1974 before Munsiff Court, Mavelikkara for redemption of 1955 mortgage. During the pendency of that suit, plaintiff in O.S.259/1974, the first respondent herein transferred his right in favour R.S.A.454/2004 3 of the second respondent under Ext.B2. Apart from Vasu Pillai, the sub mortgagee, Narayana Pillai Krishna Pillai was also a co-defendant in that suit. Though the suit was dismissed by the trial court and it was confirmed by the first appellate court in A.S.84/1978, a decree for redemption was granted by this court in S.A.101/1981 evidenced by Exts.B3 and B4 judgments rejecting the claim for tenancy raised by Narayana Pillai Krishna Pillai. It is after the said decree, legal heirs of the second respondent in S.A.101/1981 instituted the present suit seeking a decree for declaration of the right contending that the decree for redemption granted by this court in O.S.259/1974 is not binding on the legal heirs of the deceased Narayana Pillai Krishna Pillai and the plaint schedule properties. 2. Ext.A1 mortgage is of 1069. It is undisputedly now not redeemable. Though the mortgagee created a sub mortgage in 1955 and under Ext.A6 Narayana Pillai Krishna Pillai who obtained R.S.A.454/2004 4 the equity of redemption pursuant to a court auction sale and an assignment deed executed by the auction purchaser, obtained Ext.A6 right, as is clear from the document the right so obtained is only the right of Vasu Pillai, the mortgagee under the sub mortgage of 1955. It is that sub mortgage which was redeemed under Ext.B3, B4 judgments in S.A.101/1981, though O.S.259/74 was originally dismissed by the trial court. Though appellants contended that as they have been in possession of the property for more than 12 years subsequent to Ext.A6 assignment deed in their favour and the possession was adverse to the plaintiff in O.S.259/1974 and therefore the decree cannot be executed, in law such a contention will not stand. As seen from Exts.B3 and B4 judgments Narayana Pillai Krishna Pillai, under whom the appellants claim right, had claimed tenancy right admitting the rights of the plaintiff in O.S.259/1974. Therefore their possession can never be adverse to the plaintiffs in that suit. Even otherwise being R.S.A.454/2004 5 an assignee of the sub mortgage of 1955, appellants or their predecessors are not entitled to contend that their possession was adverse to the mortgagor of 1955. Therefore appellants are not entitled to get a declaration that the decree in O.S.259/1974 is not binding on them or the plaint schedule properties. 3. When the appellants are claiming right under Narayana Pillai Krishna Pillai, who was the first defendant in O.S.259/1974 and who is an assignee of Vasu Pillai the mortgagee under 1955 and rejecting their contentions, this court granted a decree for redemption of 1955 mortgage, appellants are not entitled to contend that the decree is not binding on them or the plaint schedule properties as they are claiming right only under Narayana Pillai Krishna Pillai the assignee mortgagee. In such circumstances the appeal is dismissed with costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- R.S.A.454/2004 6 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006