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D.S. Thampi Vs. Charles D'Cruz John D'Cruz and Ors. (05.02.1968 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 668 of 1964 and C.M.P. No. 628 of 1968
Judge
Reported inAIR1969Ker19
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 to 101 - Order 6, Rule 17
AppellantD.S. Thampi
RespondentCharles D'Cruz John D'Cruz and Ors.
Appellant Advocate Thayyil K. Vasudevan, Adv.
Respondent Advocate P. Raman Menon and; K. Hrishikesan Nair, Advs. for Respondent 2
DispositionAppeal dismissed
Cases Referred and Ganba Paiku v. Ganpatsao
Excerpt:
- .....mallievan kali, who was the karnavan of the tharwad had given 3 items of properties including the plaint schedule items on otti and kuzhikanam under document no. 1286 of 1958. 3. that right had devolved upon path-ummal veeyammal. easwari narayani, a member of the puliyarathala tharwad obtained a transfer of the right under the said document by paying the full amount of 1000fanams and obtained possession of the properties mid was enjoying the properties. 4. while so, eswari narayani died, and her special right devolved upon her four heirs, velayudban pillai, narayana pillai, parvathi pillai and govinda pillai, each of them getting a right to 250 fanams of the ottiyartbam. 5. while they were enjoying the properties under this special right, govinda pillai alienated his otti right and.....
Judgment:

P.T. Raman Nayar, J.

1. I think the Courts below rightly dismissed the plaintiff appellant's suit as barred by limitation, rightly applying Article 148 of the Limitation Act of 1908.

2. The plaint runs us follows :--

'1. The property described in the schedule below belonged to Puliyarathala thar-wad of Madathuvilaikom Muri, do village.

2. Mallievan Kali, who was the Karnavan of the tharwad had given 3 items of properties including the plaint schedule items on otti and Kuzhikanam under document No. 1286 of 1958.

3. That right had devolved upon Path-ummal Veeyammal. Easwari Narayani, a member of the Puliyarathala Tharwad obtained a transfer of the right under the said document by paying the full amount of 1000fanams and obtained possession of the properties mid was enjoying the properties.

4. While so, Eswari Narayani died, and her special right devolved upon her four heirs, Velayudban Pillai, Narayana Pillai, Parvathi Pillai and Govinda Pillai, each of them getting a right to 250 fanams of the ottiyartbam.

5. While they were enjoying the properties under this special right, Govinda Pillai alienated his otti right and defendants 1 to 6 are enjoying the plaint schedule property on the devolution of that right on thom.

6. There wax a partition in the said Kizhakke Puliyarathala tharwad in 1954 and the plaint schedule property was included in Schedule G in the partition deed.

7. The said G schedule property was allotted to Chollamina Bhagavathy Amma, who is the 11th party in the partition deed, and her children with full powers of disposal.

8. While so, Chellamma Bhagavathy Amma and others sold the schedule property to the plaintiff by sale deed No. 3545 registered on 17th October 1960. The sale deed is produced herewith.

9. The plaintiff is entitled to recover possession of the schedule property after paying off the otti liability etc.

10. The defendants were required to receive the Ottiyartham and deliver possession of the property to the plaintiff but they are simply delaying the matter asking for time. They have not yet put the plaintiff in possession and hence this suit.

11. The defendants do not put the plaintiff in possession because they want to misappropriate the income from the property which will come to Rs. 30/- per year. Therefore they are liable to pay the plaintiff mesne profits from the date of this plaint.

12. The defendants have committed much waste in the schedule properly. But, the plaintiff does not claim compensation for the waste with a view to avoid complications in the suit. Even though the defendants have not effected any improvements, the plaintiff is willing to pay Rs. 10/- as value of improvements. Plaintiff is willing to pay a higher value for improvements, if the defendants establish by proof that they are entitled to n higher value.

13. The consideration for the document mentioned in paragraph 3 above is 100 fanams and there are 3 items of properties. But, only the rights of Govinda Pillai, who was entitled to 1/4 of that otti amount, have devolved upon the defendants. Therefore the plaintiff is entitled to deposit propor tionate otti amount and recover possession of the schedule property.

14. Tho cause of action for this suit has arisen from 11th August 1989 and after 17th October 1960, the date of the sale deed in favour of the plaintiff in Madathuvilagam pakuthy within the jurisdiction of this court where the schedule property is situate.

15. Valuation.

250 fanams or Rs. 35.10 P being the otti amount charged on the schedule property. Court fee is paid thereon under clause 3 of Section 4 of me Court Foes Act.

Reliefs.

Therefore the plaintiff prays for the following reliefs :--

1. The plaintiff may be put in possession of the schedule property after recovering possession thereof from defendants 1 to 6 on deposit by plaintiff of Rs. 35-10 nP. towards otti amount and Rs. 10 towards value of improvements, total Rs. 45-10 nP.

2. If the defendants prove more improvements in the schedule property plaintiff may be allowed to deposit the value of such improvements in the court and plaintiff may be put in possession after evicting the defendants.

3. Plaintiff is entitled to 12 per cent interest on the amount to be deposited in the Court from the date of deposit till eviction has been ordered and plaintiff is put in possession and defendants arc personally liable for the interest for the charged amount.

4. Defendants are liable for the costs and interest at 6% from the date of the decree.

5. The Court may allow other reliefs and issue necessary orders as plaintiff may pray in due course.'

3. It is impossible to read this plaint otherwise than as one for redemption of the Otti and consequent possession of the property concerned from the hands of the successors in title of an assignee of the Otti. Regarded as such a suit it is not disputed that it is barred by limitation under Article 148 of the Act of 1908.

4. Defendants 1 and 2, who alone contested the suit, denied that they were holding the property under the Otti and claimed paramount title. But the plaint was not amended in the light of their plea and it was not converted from one for redemption and consequent possession into one for possession on the strength of title subject to the payment of compensation in respect of what the plaint calls the special rights which Govinda Pillai's successors the defendants, have in the property. It is true that the plaint alleges mat the plaintiff's predecessor's tarwad was the owner of the property, that the plaintiff's predecessor got it in partition, and that the plaintiff got it from his predecessor. But that is only for showing how the plaintiff has become the mortgagor entitled to redeem the mortgage, and the suit is based only on that right to redeem and to obtain possession of the property as a consequence thereof; it is in no way based on the plaintiff's right as owner to obtain possession. No issue was joined on the question of title to the property, and the courts below very properly did not go into the question of the plaintiffs title as against the title claimed by the contesting defendants. That being so, I cannot, in second appeal, be asked to convert this suit on a mortgage to one for re-covery of pssession on title, and proceedto decide the appeal on that basis, and the application, C. M. P. No. 628 of 1968, made for the first time in this court, for an amendment of the plaint so as to make that con-version must he dismissed. It was not made in the courts below so that there is no error of law or of procedure in those courts authorising interference in second appeal. The three decisions cited on behalf of the plaintiff, namely, Doraiswami v. Varadarajulu, AIR 1928 Mad 2, Kasi Chettiar v. Ramasami Chettiar, AIR 1937 Mad 176 and Ganba Paiku v. Ganpatsao, AIR 1937 Nag 376 only go to show that, in proper cases, the question of paramount title can be gone into and that, in proper cases, an amendment of the plaint can be allowed so as 1o convert a suit brought only on a mortgage into one for possession on title. They an: not authority for the proposition that in a suit which is a suit, pure and simple, for the redemption of a mortgage, the question of paramount title can he canvassed and a decree for posses-lion given to the plaintiff, not on the mortgage but on title, or for the proposition that in amendment of the kind prayed for can, when sought for the first time, be allowed in second appeal. In a second appeal this court acts under the restrictions placed on its power by Section 100 of the Civil Procedure Code, and it is little use pointing out that amendments of a more drastic character have been allowed by the Supreme Court in appeals before it.

5. I dismiss this appeal with costs. The Civil Miscellaneous Petition is also dismissed but I make no order as to costs therein.


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