IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 RSA.No. 310 of 2009() --------------------- AS.253/2003 of SUB COURT,NEYYATTINKARA OS.695/1991 of PRINCIPAL MUNSIFF COURT,NEYYATTINKARA .................... APPELLANT/APPELLANT/ADDL.5TH DEFENDANT ----------------------------------------------------- THANKAYYAN NADAR CHRISTUDAS, KARAKATTUVILA ROADARIKATHU PUTHUVAL PUTHENVEEDU, MAMPAZHAKKARA DESOM, PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): RESPONDENTS/2ND PLAINTIFF & DEFENDANTS 2 TO 4 ------------------------------------------------------------ 1. NARAYANAN NADAR KARUNAKARAN NADAR, KUZHIVILA THEKKE PUTHENVEEDU, PERUMKADAVILA DESOM, PERUMKADAVILA VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 2. SNEHAPPU SWARNAM, DEVARAJ BHAVAN, KARAKATTUVILA ROADARIKATHU PUTHUVAL PUTHENVEEDU, MAMPAZHAKKARA DESOM, PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3. THANKAYYAN NADAR DEVARAJAN NADAR, DEVARAJ BHAVAN, ERATTUPURAM, MAMPAZHAKKARA DESOM, PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 4. THANKAYYAN NADAR ASSARI, SOUTH SIDE BUILDING, ERATTUPURATHU KARAKATTUVILA PURAYIDOM, MAMPAZHAKKARA DESOM, PERUMPAZHUTHOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. ADV. SHRI K.K.SATHISH FOR R1 (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.310 of 2009 -------------------------------------- Dated this the 3rd day of February, 2010. JUDGMENT Respondent No.1/plaintiff No.2 appears through counsel. 2. Second Appeal arises from judgment and decree of learned Sub Judge, Neyyattinkara in A.S.No.253 of 2003 confirming decree for redemption of mortgage. Parties are referred to as plaintiffs and defendants as in the trial court for convenience. 3. Respondent No.1/plaintiff No.2 is son of plaintiff No.1 who died pending proceeding. According to the plaintiffs, plaint A schedule was set apart to the share of plaintiff No.1 as per partition deed No.3602 of 1118 ME. Plaintiff No.1 mortgaged that property in favour of defendant Nos.1 and 2 as per Ext.A2, mortgage deed No.4604 of 1961 dated 9.9.1961 for Rs.700/- providing six years time for payment of the mortgage money. Plaintiffs alleged that defendants are in possession of plaint A schedule property. They constructed structures in plaint A schedule which is described as plaint B schedule. While so there was Ext.A1, partition in the year, 1971 between plaintiff No.1 and her children as per which jenm right over plaint A schedule was allotted to plaintiff No.2 and others. Plaintiffs expressing their willingness to deposit mortgage money prayed that the mortgage may be redeemed and defendants may be directed to remove plaint B schedule structures. Defendant Nos.1 and 2, husband and wife RSA No.310/2009 2 admitted Ext.A2 but claimed that they have fixity of tenure over plaint A schedule. They claimed that they have put up structure in the suit property spending Rs.300/- in the year 1962 and have set up residence in that hut. Later they renovated it. During pendency of the suit defendant No.1 died and his legal representatives were impleaded as additional defendant Nos.3 to 5. Additional defendant No.3 contended that he has put up a house in plaint A schedule and improved the property. Additional defendant Nos.4 and 5 contended that they are cultivating tenants of suit property entitled to fixity of tenure. They claimed that they have put up two structures in the suit property spending substantial amounts. Hence they are entitled to get value of improvements, at any rate. Issue regarding fixity of tenure raised by defendant Nos.1 and 2 was referred to the Land Tribunal for decision. The Land Tribunal found that defendant Nos.1 and 2 are not tenants of plaint A schedule property. That finding was accepted by the trial court and a decree for redemption of mortgage was granted in favour of plaintiff No.2. He was directed to deposit, apart from the mortgage money Rs.89,428/- for payment to additional defendant Nos.3 to 5 by way of value of improvements. The decree was challenged by the appellant/additional defendant No.5. First appellate court confirmed finding of the Land Tribunal on the issue regarding fixity of tenure. The decree was confirmed. Additional defendant No.5 is aggrieved by the judgment and decree of the court below and has come up in appeal. RSA No.310/2009 3 I have heard learned counsel for appellant/additional defendant No.5 and respondent No.1/plaintiff No.2. It is submitted by counsel on both sides that between the appellant/additional defendant No.5 and respondent No.1/plaintiff No.2 there was a settlement at the time of execution of decree and accordingly both sides have filed statements in the executing court as to the manner of settlement. Respondent No.1/plaintiff No.2 has produced the photocopy of statements given by appellant/additional defendant No.5 and respondent No.1/plaintiff No.2 in the executing court and the report of the Amin regarding delivery of the property subject to the settlement. The details of settlement are contained in the said statement and the report of Amin. Amin has reported how the decree was executed in the light of the settlement reached between appellant/additional defendant No.5 and respondent No.1/plaintiff No.2. In the light of that settlement, it is unnecessary to proceed with this Second Appeal. Accordingly Second Appeal is disposed of as settled between appellant/additional defendant No.5 and respondent No.1/plaintiff No.2 outside court. THOMAS P.JOSEPH, Judge. cks