PADMANABHA PILLAI Vs. PICH ROWTHER
HIGH COURT OF KERALA
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(1.) The plaintiff is the special appellant. He had a mortgage Ext. B for 1400 fanams over certain property belonging to a Devaswom and executed a sub mortgage Ext. C dated 29.5.1106 in favour of the defendant from 500 fanams of which 105 and odd fanams was left with the defendant to pay as per recital. The defendant covenanted under the sub mortgage to pay to the Devaswom the annual tax of 10 paras of paddy from 1105 onwards but he did not pay either the recital amount or the tax due to the Devaswom with the result that the properties were sold in revenue auction on 14.5.1109 for arrears of tax due to Devaswom for the three years 1106 to 1108. The plaintiff subsequently filed petition before the Devaswom authorities to set aside the revenue sale. Being unsuccessful therein he later filed suit OS No. 104 of 1110 in the Quilon District Court to set aside the revenue sale impleading the present defendant sub mortgagee as the 2nd defendant but the suit was dismissed on 18.1.1116. This suit was laid therefore for recovery of damages from the defendant for the amount of 1400 fanams representing Ext. B mortgage amount after deducting therefrom the actual consideration of 394 and odd fanams due to the defendant under the sub mortgage Ext. C and also for the costs incurred by the plaintiff in the conduct of the suit OS No. 104 of 1110.
(2.) Defendant contested the suit. He disclaimed liability for payment of tax on the ground that he did not obtain possession of the plaint property under Ext.C sub mortgage and further contended that the damages claimed was in any event too remote and besides the suit was barred by limitation. The courts below concurrently found that the suit was not barred by limitation and that the defendant got possession. The Trial Court found further that the defendant was to blame for having allowed the property to be sold in revenue auction and was liable in consequence for damages on all the heads claimed by the plaintiff. The learned Additional District Judge in appeal by the defendant modified decree of the Trial Court and granted recovery of 45 paras of paddy made up of 30 paras being the defaulted arrears and interest thereon up to one half the principal subject however to a deduction of the admitted consideration of 394 and odd fanams under the sub mortgage. The price of paddy was to be calculated at the nirak rate on the date of suit. The plaintiff has come up in appeal claiming that he is entitled to the entire damages as prayed for in the plaint and as granted by the Munsiff. By cross objection the defendant has raised once again all the questions he raised in the Trial Court as to possession, limitation and also measure of damages.
(3.) The question of possession of the defendant under the sub mortgage need not detain us for a moment. It is concluded by the concurrent findings of the courts below and no reason has been made out for interfering with those findings.;
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