1. The legal representatives of the deceased defendant are the appellants in this Second Appeal.
2. The suit is for recovery of the plaint schedule properties or in the alternative, for realisation of certain amounts charged on the plaint schedule properties.
3. The short facts leading up to this litigation are as follows:
4. The Jenmi of the properties is the Keevelloor Devaswam, Vellorkara and the plaintiff is the manager of the said Devaswora. On 20--4--1094, under Ext. E, he executed a kanom in favour of one Parameswara Panicker. The said Parameswara Panicker assigned his rights under Ext. C on 6-12- 1107 in favour of one Raman Nair. Raman Nair executed a mortgage on 6-12-1107 on the same date under Ext. F in favour of the original defendant., On 29-12-1109 under Ext. D Raman Nair reassigned his rights to Parameswara Panicker.
5. The Devaswom instituted two suits, O. S. 1238/1110, District Munsiff's Court, Vaikom and O. S. 479/1116, District Munsiff's Court, Vaikom for recovery of the Michavaram dues for the years 1100 to 1109 and 1110 to 1116 respectively. The proceedings connected with the earlier suit are evidenced by the Execution Diary, Ext. A and the decree in the later suit is Ext. B. The defendant, who is in the position of a puisne mortgagee, was not made a party by the Devaswom in these two suits. The Devaswom obtained decrees in the two suits as prayed for. In execution of the decree in O. S. 1238/1110 the kanom rights of Parameswara Panicker were sold on 16-8-1121 and were purchased by the plaintiff Devaswom therein. The Devaswom also got possession of the properties in execution of that decree on 13--3--1122.
6. The puisne mortgagee started to enforce his rights under Ext. F by instituting a suit O. S. 123/1118. The prior mortgagee namely, the plaintiff was not a party to the suit. The suit resulted in a judgment, Ext. 3 in favour of the plaintiff therein. On 22-1-1121 the kanom rights were sold and purchased by the plaintiff therein. The sale proclamation in respect of the sale is Ext. J dated 20-2-1120, The actual sale certificate is Ext. 4 dated 5-3-1124. By virtue of the said purchase, the plaintiff therein, who is the defendant in the present proceedings, applied for delivery of properties by virtue of his purchase dated 22-1-1121. The present plaintiff's tenants, who were in possession of the properties by virtue of the plaintiffs purchase dated 16-8-1121, filed objections to delivery being effected to the present defendant.
The learned District Munsiff by his order dated 28-11-1124, Ext. L, overruled these objections and directed delivery being effected in favour of the present defendant. The learned District Munsitf was of the view that the present defendant, though a puisne mortgagee, is entitled to possession, in view of the fact that he is the earlier purchaser. By virtue of this order, the defendant obtained possession of the suit properties. The present suit has been instituted by the plaintiff for recovery of possession of the properties or in the alternative, for realisation of certain amounts due to him and charged on the properties. It will be seen from the narration of facts that the plaintiff, though a prior mortgagee, was a purchaser under court sale only on 18-2-1121; whereas the defendant, though a puisne mortgagee, was a purchaser under an earlier court sale dated 22-1-1121. Each of the mortgagee, did not make the other a party to his respective suit. Therefore, the question was as to the person entitled to possession of the properties.
7. The present suit was contested by the defendant on the ground that he being the prior purchaser in a court sale, is entitled to be in possession and that the plaintiff has no right to get him dispossessed.
8. Though the plaintiff attacked the puisne mortgagee and the proceedings connected therewith in favour of the defendant as being not supported by consideration and good faith, the trial court held against the plaintiff and overruled his contentions in this regard. These findings do not appear to have been challenged even before the District Court.
9. Regarding the right to possession, the trial court held that the defendant, being the earlier purchaser, has the right to he in possession as against the plaintiff, who is only a later purchaser, though a prior mortgagee. In this view the trial court held that the plaintiff is not entitled to recover possession of the properties.
10. Regarding the alternative claim made by the plaintiff for recovery of the amounts on the basis of his claims which are charged on the plaint schedule properties, the trial court treated this claim as in effect one by the plaintiff to compel thedefendant to redeem his mortgage. The trial court was of the view that the order for delivery overruling the objections of the present plaintiff as evidenced by the order, Ext. L, was not valid in law. Taking into account that the puisne mortgagee is a person who is entitled to redeem the prior mortgage and also in view of the fact that the purchase by the defendant in his court auction was clearly subject to the rights of the plaintiff, the trial court held that the plaintiff is entitled to have a decree, at any rate, for part of the amounts claimed by him. The reasoning of the trial court regarding this aspect is contained in the concluding portions of paragraph 6 of its judgment and it gave him a decree for Rs. 846-14-0 with interest at 4% per annum.
11. The plaintiff filed an appeal to the District Court ot Alleppey against the decree of the trial court disallowing his relief for possession and for mesne profits and the defendant in turn, filed a memorandum of cross-objections challenging the decree for money passed as against him. The learned District Judge was of the view that the plaintiff's suit could not be considered to be one for compelling the defendant to redeem his mortgage. The learned Judge was also of the view that the plaintiff is entitled to get a decree for recovery of the properties, as, in his opinion, the order or dispossession as evidenced by Ext. L is illegal. Regarding the claim for mesne profits, it directed the execution court to go into this matter and ascertain the exact amount of mesne profits due to the plaintiff. That is, in substance, the learned Judge passed a decree in favour of the plaintiff both for possession and also for mesne profits as prayed for by him and set aside the decree of the trial court and dismissed the memorandum of cross-objections filed by the defendant.
12. Mr. T. S. Krishnamurthy Iyer, learned counsel for the defendant-appellant, has very strenuously attacked the reasoning of the learned Judge. According to Mr. T. S. Krishnamurthy Iyer, decisions of the various courts are quite clear and have laid down the principle that where the competition for possession is between the purchasers under mortgages of different dates upon the property sold, priority of date of purchase gives priority of title to possession. In this case, his client, though a puisne mortgagee, has purchased the properties earlier than the plaintiff, prior mortgagee. In view of the fact that his client is an earlier purchaser, he is entitled to possession of the suit properties irrespective of the rights of the plaintiff. He also supported the order, Ext. L overruling the objections of the plaintiff's tenants.
13. Mr. Maclhavan Nair, learned counsel for the plaintiff-respondent, has contended that though the defendant, in circumstances like this, may be entitled to possession of the properties, still the latter is not entitled to get possession by summarily rejecting the plaintiff. He attacked the order, Ext. It as one passed without jurisdiction. His client, though a later purchaser, is an earlier mortgagee and he had obtained possession of the properties through court. His possession cannot be considered to be in any way unlawful or illegal and such possession of the plaintiff should not have been summarily disturbed in execution of the defendant's decree. The proper order, according to Mr. Mad-havan Nair, must have been to direct the defendant to take appropriate proceedings for redeeming the plaintiffs mortgage.
14. The legal position appears to be fairly well settled and that is this:
15. The purchaser, whose purchase is earliest in point of time, is entitled to possession and the rights of a simple mortgagee, who omitted to make a subsequent puisne mortgagee a party to his suitshould be worked out in a proper suit instituted for that purpose by him or his representative-in-interest. The Madras, Travancore, Cochin, and the Travancore-Cochin High Courts have been uniformly adopting this view: See Nagendran v. Lakshmi, AIR 1933 Mad. 583 F:B. of 3 Judges : Verghese v. Sanku, 29 Trav. LJ 263 (FB) of 3 Judges; George v. Raghava Menon 39 Cochin 430 (FB) of 3 Judges and Chacko v. Pramena, 1957 Ker L.T. 185 : (AIR 1957 Kerala 48) of Sankaran and Joseph JJ. All these cases have very elaborately considered this position and we respectfully agree with the reasons given in those judgments in support of the principle mentioned above, and as sum we are not discussing this aspect any further.
16. Therefore, it follows that the plaintiff, who is only a later purchaser, though a prior mortgagee, is not entitled to get possession. On this ground it must be held that the plaintiff's suit, in so far as it prays for recovery of possession of the properties, will have to be dismissed. But that does not mean that the plaintiff is absolutely without any remedy. As. stated earlier, if it is only a dispute of the right to possession-pure and simple-the priority of date of purchase gives priority of title to possession. But the defendant who is in the position of a puisne mortgagee, cannot ignore the rights of the prior mortgagee. But in this case, both the prior and subsequent mortgagees have been brought face to lace in one litigation and in such a suit, in our opinion, the rights of the two mortgagees must be properly worked out and adjusted,
17. Mr. T. S. Krishnamurthy Iyer, took the extreme contention that once his client is found to fee entitled to possession, the plaintiff must be allowed to work out his rights, if any, in other separate proceedings.
18. On the other hand, Mr. Madhavan Nair, learned counsel for the plaintiff, contended that even though his client may not be entitled to possession as such, still he being the prior mortgagee can compel the subsequent mortgagee, defendant to redeem his prior mortgage and in this connection, he has relied upon the answer to question No. 2 given by the Full Bench of the Travancore High Court in the decision reported in 29 Trav. L. J. 263 (FB). The material answer of the learned fudges relied upon is at page 280 which is as follows;
'Where the puisne hypothecatee-purchaser is the earlier purchaser, he can sue for possession. But ie must redeem the prior hypothecatee-purchaser in possession. The latter cannot however compel the former to submit to redemption',
Therefore, the learned counsel contended that the defendant must be directed to redeem his client's prior mortgage.
19. In our opinion, the suit is not merely one to set aside the order, Ext. L. It is in effect a suit by the prior mortgagee to compel the puisne mortgagee to redeem the prior mortgage and for adjustment of their respective rights. Mr, Madhavan Nair has also placed very strong reliance on the circumstances that even the purchase by the defendant in pursuance of his decree was really a purchase subject to the rights of the plaintiff under the decrees as prior mortgagee.
20. The proclamation schedule, Ext. J and the sale certificate in favour of the defendant, Ext. 4 connected with O. S. 123/1118 clearly show that the defendant brought the properties to sale subject to the rights of the prior mortgagee namely, plaintiff and that he purchased the properties only subject to the rights of the present plaintiff under the two decrees. In view of these circumstances, it is idle for Mr. T, S. Krishnamurthy Iyer to contend thathis client can ignore the claims of the plaintiff as prior mortgagee. In order to avoid multiplicity of proceedings and especially in view of the fact that the prior and puisne mortgagees are face to face in this litigation, we think it unnecessary to drive the plaintiff to a separate suit. It is desirable that the rights of the plaintiff and defendant are marked out and adjusted as between the parties in these proceedings themselves.
21. The learned counsel, Mr. Madhavan Nair has given us a statement about the amounts that are due to his client on the basis of the defendant's purchase being subject to the rights of the prior mortgagee. From that statement it is seen that the amount due to the plaintiff will be as follows:
a. Amount due in respect of the decree in O. S.1238/1110. Rs. 1,056 b. Amount due in respect of the decree in O. S.479/1116. 200
22. Over and above these amounts, Mr. Madhavan Nair claims Jenmikarom for 10 years, that is from 1-2-11125 to 1-2-1135 at Rs. 63-15-6. This amount is claimed on the basis of Ext. K. The total of all these claims in favour of the plaintiff comes to Rs. 1,896-11-0.
23. Our whale object in trying to adjust the rights of parties is only with a view to avoid multiplicity of proceedings. We cannot take into account all claims which the plaintiff may have Otherwise, In the view that we have expressed that the plaintiff is not entitled to obtain possession, it follows that he is not also entitled to mesne profits, The alternative relief that was claimed, was only in respect of the ambunts due under the decree in the two suits evidenced by Exts. A and B. The trial court while refusing the claim for possession allowed the plaintiff only the amounts due under the decree in the suit evidenced by Ext. A. But as the defendant has, in our opinion, purchased the properties specifically subject to the claims of the plaintiff under the two suits, he will also be entitled to the amount decreed in the other suit evidenced by Ext. B. Therefore, the only decree that we can give to the plaintiff, on his alternative claim is only the two amounts of Rs. 1,056/- and Rs. 200/- due as per the decrees in the two suits evidenced by Exts. A and B respectively. We cannot compel the defendant to pay the michavaram for 10 years from 1-2-1125 to 1-2-1135, because that is a matter on which the parties have never joined issue. Therefore, the claim for Rs. 640-11-0 included in the statement furnished by Mr. Madhavan Nair, cannot be allowed in his favour in these proceedings. If the plaintiff is entitled in law to recover those amounts, he can do it in other appropriate proceedings.
24. From the above discussion it follows thatthe plaintiff will be entitled, and is given a decreefor a sum of Rs. 1,056 + Rs, 200/- namely, Rs. 1,256/-nayable by the defendant at 6 per cent interest,from the date of the trial court decree. This amountwill be a charge in favour of the plaintiff on theplaint schedule properties. In all other respects,the plaintiffs suit will stand dismissed. No otherpoints were argued before its. Parties will bear theirown costs throughout in these proceedings.