MYTHEEN PACHA ROWTHER MASOODU SAHIB Vs. MADHAVAN PILLAI KUNJU PILLAI
LAWS(KER)-1968-6-10
HIGH COURT OF KERALA
Decided on June 13,1968

MYTHEEN PACHA ROWTHER MASOODU SAHIB Appellant
VERSUS
MADHAVAN PILLAI KUNJU PILLAI Respondents

JUDGEMENT

- (1.) THESE Second Appeals arise out of three suits for redemption of three mortgages. The contesting parties are the same; and common questions arise for decision. Hence they were heard jointly, and are being disposed of by this single judgment. The three suits are O. S. Nos. 245 of 1122, 430 of 1123 and 564 of 1124 on the file of the Munsifs Court, Adoor. The last suit was transferred to the munsifs Court, Punalur, wherein it was filed as O. S. No. 565 of 1956. There are two plaintiffs in each suit; and they are the same. There is only one defendant in o. S. No. 245 of 1122; and he is the 5th defendant in O. S. No 430 of 1123, and the 1st defendant in O. S. No. 565 cf 1956. The plaintiffs' right to redeem was disputed only by this defendant; and he will be referred to in this judgment as the defendant. The 2nd defendant in O. S. No. 430 of 1123 claimed that she was entitled to a share in the mortgage right sought to be redeemed in that suit; but she subsequently faded out of the litigation. The remaining defendants in O. S. No. 430 of 1123 and O, S. No. 565 of 1956 did not contest the suits.
(2.) THE properties sought to be recovered are 50 cents in the first suit, and 1. 57 acres in the second suit, both being part of Sy. No. 418/2 in Pathanapuram village, The property concerned in the third suit is 70 cents in Sy. No. 418/2 and 21 cents in Sy. No. 418/3 in the same village. According to the plaintiffs, all these properties belonged to one Mannilazhikam tarwad in Pathana-puram village; and the plaintiffs purchased the equity of redemption of the said properties from the members of the said tarwad under two sale deeds. The defendant contended that the persons from whom the plaintiffs purchased the properties were not members of the above tarwad, and that they did not get any rights in the said properties. The suits were defended on other grounds also, to which I shall refer subsequently. The first two suits were tried together, and were dismissed by the adoor Munsifs Court, upholding the above contention of the defendant. The decrees in these two suits were confirmed in appeal by the Subordinate Judge, kottarakara. The Punalur Munsif upheld the contention, of the plaintiffs in the third suit, and decreed it. This decree was confirmed in appeal by the District Court, quilon. The aggrieved parties filed second appeals to this Court. Confronted with the peculiar situation of having conflicting concurrent findings on the same issue between the same parties by different Courts, my learned brother Velu Pillai, J. by his judgment dated 30th August 1962, set aside all the decrees and remitted the cases to the District Court, Quilon, for rehearing and disposal. Accordingly, the cases went back to the District Court; and the learned District Judge by his judgment dated 29th September 1962, set aside the decrees in the first two suits, and confirmed the decree in the third suit, after upholding the plaintiff's contention, The defendant died during the pendency, of the litigation; and his legal representatives have therefore, filed these second appeals.
(3.) I am afraid that the remand of the cases to the District Court did not solve the problem which my learned brother had to face on account of the conflicting concurrent findings. The same problem arises again in a slightly different form. In the third suit, the finding on the question of title of the plaintiffs is concurrent; and it is against the defendant. The learned counsel for the plaintiffs contended before me that the defendant was not entitled to canvass the correctness of the said finding in second appeal. He further submitted that the above finding had become final, and that it would conclude the defendant from questioning its correctness in the second appeals arising from the other two suits. On the other hand, the learned counsel for the defendant contended that the findings on the question of the plaintiffs' title were divergent in the first two suits, that his client was entitled to have a decision on the said question from this Court, and that the said decision would be certainly binding on the parties in all the three appeals. No authority for the solution of this problem has been cited; and if I am to follow the precedent of my learned brother, I must again set aside the decrees under appeal and remand the cases for rehearing and disposal to the trial Court instead of to the lower appellate Court. But I do not propose to do so; I shall dispose of all the three appeals, after reappraisal of the whole evidence in the case having due regard to the conflicting views expressed by the Courts below. It is now about 20 years, since these litigations were started. In 1962 this Court remanded the cases to the district Court, with the observation that the District Court should dispose of the appeals as expeditiously as possible; and the learned District Judge disposed of them within one month. But these second appeals have been now pending before this Court for more than five years. This is another reason which compels me against remanding these cases again to the trial Court for disposal, on the technical question raised by the learned counsel.;


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