PERUVANIYAN KRISHNA KURUP Vs. CHOWWAKARAN RAZHUKKATH POKKI

JUDGEMENT

(1.) The suit out of which this Second Appeal arises was instituted by the plaintiff for the recovery of possession of item 1 of the plaint schedule. The plaint comprises two items of properties namely item 1 being Kanancheri paremba and item 2 being Nata paremba which admittedly belonged in jenm to Peruvianayan Thazhekunnath tarwad of defendants 3 to 6. By Ex. 1 dated 16 March 1880 the said properties were leased by its karnavan to Mathancheri Kannan and he obtained a renewal from the succeeding karnavan by Ex. A dated 5 October 1892. In or about 1895 the plaint properties were in pursuance of a rezinamah set apart by the then karnavan for the maintenance of Lakshmi Amma and her descendants who form a tavazhi of the main tarwad and possession was delivered to her and she was collecting the rents from the lessee Kannan. On 2 May, 1900 Lakshmi Amma gave a melcharth to one Kumhammed Kutti with authority to recover possession of the property from Kannan after paying off the amount if any due to him and on 4 January 1908 Kunhammad Kutti obtained a decree for arrears of rent against Kannan on the strength of the said melcharth and subsequently Kunhammad Kutti assigned all his rights under the melcharth to Kannan himself as per Ex. 4 dated 13 March 1912 and Kannan attorned to Lakshmi Amma and continued to pay rent to her. Kannan's leasehold rights were purchased in execution of a decree obtained by one Chokru on 29 October 1920 and Chokru assigned his rights to defendant 1 who has since the date of purchase continued to pay the rent to Lakshmi Amma and after her death to defendants 3 to 6. In the meanwhile on 17 January 1907 the karnavan of the Thezhekunnath tarwad to whom the properties belonged in jenm as aforesaid conveyed the said properties and some other items of property to one Akkal Kannan Nair for a consideration of Rs. 2,500. The present plaintiff 1 obtained a mortgage-decree against Kannan Nair in O.S. No, 886 of 1912 on the file of Nadapuram Court, had the rights of Kannan Nair brought to sale and purchased them himself. The sale certificate was issued to him on 18 December 1922. On 25 August 1927 he issued a registered notice to defendant 1 demanding surrender of possession of plaint item 1 but defendant 1 declined to do so stating that he was holding the property under defendants 3 to 6 and denied the title of the plaintiff and his right to recover (possession of the same. Thereupon the plaintiffs have instituted this suit against defendant 1 and defendant 2 who is a sub-tenant under him and defendants 3 to 6 who belong to the tavazhi of Lakshmi Amma for recovery of possession of item 1.

(2.) The defence of the contesting defendants is that the Karnavan had no right to sell the properties of Akkal Kannan Nair in derogation of the maintenance arrangement entered into by him settling the property on defendants 3 to 6, that the said sale was in any event fraudulent and not binding on them, that neither Akkal Kannan Nair, nor plaintiff 1 nor plaintiffs had at any time possession of the properties and that in any event the plaintiffs title to the property must be deemed to be barred by limitation and adverse possession. The learned District Munsif who tried the suit was of opinion that Ex. E, the sale deed in favour of Akkal Kannan Nair by the karnavan was for necessary purposes of the tarwad and therefore binding on defendants 3 to 6, but he negatived the plaintiff's claim on the ground that the tenants of plaint item 1 including defendant 1 have not at any time attorned to Akkal Kannan Nair but have been in possession under the maintenance holders Lakshmi Amma and her descendants defendants 3 to 6 and the possession of defendants 3 to 6 was adverse to the plaintiff and therefore his right to recover possession of the properties was barred by adverse possession.

(3.) On appeal the learned District Judge reversed the decision of the District Munsif. He held that the sale in favour of Akkal Kannan Nair was binding on the tarwad. He also found that the property was allotted to the maintenance holders in 1895 and ever since was being enjoyed by them in that the tenants held under them and paid rent to them. He further found that neither Akkal Kannan Nair nor the plaintiff subsequently obtained an attornment of the tenant or collected rent from him. But he however held that the tenancy of Kannan under the lease of 1892 must be deemed to have continued and not put an end to and his possession could not be adverse as against the plaintiff and therefore the plaintiff's rights were not barred and he was entitled to recover possession.