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Parakandyilparkum Kishakkayil Urumi Koran and ors. Vs. Kilath Puthiya Purayil Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in3Ind.Cas.41
AppellantParakandyilparkum Kishakkayil Urumi Koran and ors.
RespondentKilath Puthiya Purayil Ahmad and ors.
Cases ReferredPadammah v. Themana Ammah
Excerpt:
specific relief act (i of 1877), section 42 - suit for declaration--mortgage by karnavan of a malabar tarwad--suit by members of tarwad to declare mortgage not binding on them--re-demisc of the lands by mortgagee to karnavan--whether plaintiffs should sue for possession. - 1. we think the learned judge was wrong in giving effect to the objection that the plaintiffs should have claimed possession. it seems to us, on the facts, a declaration was the only relief it was open to them to claim. although the kanom was granted to a stranger, the 1st defendant, never parted with possession. we think the decision in padammah v. themana ammah 17 m.k 322 applies. we must set aside the decree of the lower appellate court, and send hack the case to be disposed of according to law. costs will abide the result.2. the memorandum of objection is dismissed with costs.
Judgment:

1. We think the learned Judge was wrong in giving effect to the objection that the plaintiffs should have claimed possession. It seems to us, on the facts, a declaration was the only relief it was open to them to claim. Although the Kanom was granted to a stranger, the 1st defendant, never parted with possession. We think the decision in Padammah v. Themana Ammah 17 M.k 322 applies. We must set aside the decree of the lower appellate Court, and send hack the case to be disposed of according to law. Costs will abide the result.

2. The memorandum of objection is dismissed with costs.


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