D S THAMPI Vs. CHARLES DCRUZ JOHN DCRUZ
HIGH COURT OF KERALA
D S THAMPI
CHARLES DCRUZ JOHN DCRUZ
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(1.) I think the courts below rightly dismissed the plaintiff appellant's suit as barred by limitation, rightly applying Art.148 of the Limitation Act of 1908.
(2.) The plaint runs as follows:-
" 1. The property described in the schedule below belonged to Puliyarathala tharwad of Madathuvilakom Muri, do. Village.
2. Mathevan 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 Pathummal, 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 1000 fanams and obtained possession of the properties and was enjoying the properties.
4. While so, Easwari Narayani died and her special right devolved upon her four heirs, Velayudhan Pillai, Narayana Pillai, Parvathi Pillai and Govinda Pillai, each of them getting a right to 250 fanams of the ottiyartham.
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 them.
6. There was 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 Chellamma Bhagavathy Amma, who is the 11th party in the partition deed, and her children withfull 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 plaintiffs 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 property. 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 a higher value.
13. The consideration for the document mentioned in Para.3 above is 100 fanams and there are 3 items of properties. But, only the rights of Govinda Pillai, who was entitled to of that otti amount, have devolved upon the defendants. Therefore the plaintiff is entitled to deposit proportionate otti amount and recover possession of the schedule property.
250 fanamas or Rs. 35.10 P being the otti amount charged on the schedule property, Court fee is paid thereon under Clause.3 of S.4 of the Court Fees Act.
Therefore the plaintiff prays for the following reliefs:-
1. The plaintiff may be put in possession of the schedule property after re covering 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 12 %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 are 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 Art.148 of the Act of 1908.;
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