AVATHITHIKA Vs. SITA BAI
LAWS(KER)-1963-8-45
HIGH COURT OF KERALA
Decided on August 05,1963

Avathithika Appellant
VERSUS
SITA BAI Respondents




JUDGEMENT

- (1.)The plaintiffs are the appellants.The plaint schedule properties originally belonged to the 1st plaintiff and her mother inlaw,one Bombi in equal shares.They executed a mortgage in favour of one Damodara Shetty and put the mortgagee in possession of B schedule property directing him to appropriate the income thereof towards interest on the mortgage amount.The mortgagee thereafter purchased the half share in the property of Bombi and thereby extinguished the mortgage in respect of the half share so purchased.For the realisation of the remaining half of the mortgage amount,O.S.No.23 of 1951 was filed by the 1st defendant as the legal representative of the mortgagee,and a decree was obtained for the sale of the other half of the property.But that decree amount was deposited by the 1st plaintiff on 28 -7 -1952.Now that the mortgage has been discharged,the plaintiffs filed the present suit for recovery of possession of the B schedule property.The 2nd plaintiff is the assignee of the right of the 1st plaintiff.
(2.)The 1st defendant contended that she has become the owner of a half share in the property,that she was in possession of B schedule property as a coowner and that she was not liable to be evicted without a partition of the properties by metes and bounds.
(3.)The trial court found that the possession of B schedule property by 1st defendant was only as successor to the mortgagee and that since the mortgage has been extinguished by purchase and by payment,the 1st plaintiff as coowner,was entitled to recover possession of B schedule property.On the basis of this finding,the trial court decreed the suit.Against the decree an appeal was preferred by the defendants and the lower appellate court has come to the conclusion that the plaintiffs were not entitled to a decree for possession of the property and that their remedy was to file a suit for partition and for recovery of 1st plaintiff's share in the property.That conclusion was based upon the fact that the 1st plaintiff had no possession of the B schedule property at the time of the suit.It is this decree which is challenged in this appeal.
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