VEETIPARAMBIL AHAMMAD Vs. CHERIATH CHENNAMANGALATH MANAKKAL KARNAVAN

JUDGEMENT

(1.) The facts are somewhat complicated and I think it is unnecessary to state them in great detail. Chiyamu was apparently the original owner of the property, but by Ex. B, dated the 15 January 1888, he acknowledged the plaintiff's title and obtained a kanom (mortgage) of the property. Whatever the rights originally of the parties were, that on the date of Ex. B the plaintiff became the owner of it there is no question. Chiyamu who was thus only a mortgagee executed a deed of sale Ex. 3 on the 8 February 1897 in favour of his son-in-law, Motippan. The sale was made on the footing that Chiyamu was absolutely entitled to the property. In October or November of the same year Chiyamu died and on the 23 of June 1898, a partition, Ex. G, was effected among his heirs and the kanom right of Chiyamu over the property in question fell to the share of Aiyasabi, his daughter. The sale in favour of Mooppan was thus ignored in the deed of partition and it is equally important to notice that the only right which Chiyamu was assumed to possess was the kanom right. Ex G was attested by Mooppan, the brother-in-law of Aiyasabi. The next transaction is the transfer in favour of Mooppan by Ex. K dated the 2 August, 1898, of the kanom right which fell to the share of Aiyasabi. It is suggested that Ex. K is not a genuine document. The Subordinate Judge assumes that it is genuine, but does not record any definite finding. The question is not, however, of much importance as Mooppan recognised subsequent to Exs. G and K the jenm right (absolute title) of the plaintiff and paid him rent on the footing that he was only a kanomdar. Payment of rent is evidenced by Ex. P series. That rent was paid, is found as a question of fact by the Subordinate Judge. Whether Mooppan came into possession of the property under the conveyance to him, Ex. 3, or under Ex. K is not distinctly found. This again, in my opinion, is not material. It is established beyond doubt that the right which he claimed over the property was that of a kanomdar and that he admitted the absolute right of the plaintiff and paid him rent. Mooppan's possession, therefore, even subsequent to Ex. 3 was that of a tenant.

(2.) I must now refer to another set of transactions in virtue of which the 2nd defendant claims the property. Mooppan, by Ex. 6, dated the 19 June 1906, professing to be the owner of the property, mortgaged it by way of hypothecation to one Parangodan. Possession remained with Mooppan and Parangodan assigned the hypothecation to Kunhi Bava. The latter filed Suit No. 695 of 1909 against Mooppan to enforce his mortgage and obtained a decree and brought the property to sale. The second defendant became the purchaser at the Court auction. It is not disputed that the 2nd defendant has not been in possession of the property for 12 years.

(3.) The short question to be decided is, whether Art. 134 of the Limitation Act is applicable. It runs thus: To recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for valuable consideration, 12 years from the date of transfer.