Hegde, J. - (1.) This appeal by special leave is directed against the decision of a single Judge of the Kerala High Court in a second appeal. Therein the learned Judge allowed the appeal of the plaintiffs, reversed the judgment and decree of the first appellate Court and restored that of the trial Court.
(2.) In order to decide the points arising for decision in this appeal it is necessary to set out in brief the facts of the case. This litigation has a long history. The property concerned in the suit is 99 cents in extent but it contains some buildings. It is situate in a municipal town of Kottayam taluk. It appears that the property has now become very valuable. This property admittedly at one time belonged to an Ezhava Marumakkathayam Tharwad. Three junior members of that Tharwad sold that property to a third party in 1063 M. E. (Mallayalam Era.) . Three other junior members of that Tharwad sued for the recovery of that property in 1074 M. E after setting aside the alienation which according to the plaintiffs therein was not valid and binding on the Tharwad. That suit was decreed and the plaintiffs therein were allowed to recover possession of that property on their paying the alienee a sum of Rs. 454/-. The decree holders were unable to pay that sum. They applied to the Court to permit one Krishnan Krishnan, a relation of theirs to deposit the amount in question into Court and take delivery of the property. The Court allowed that application. Thereafter the said Krishnan Krishnan deposited Rs. 454/- into Court through the plaintiffs' lawyer and took delivery of the property in 1082 M. E through Court. Kunjappi Velu, a creditor of Krishnan Krishnan filed a suit against him in 1089 M E., obtained a decree and thereafter put up the property in question for sale and purchased the same in Court auction. He took delivery of that property through Court in 1102 M. E. The said Kunjappi Velu sold the property to one Punnen Thomas very soon after he took delivery of the property. This purchase by Punnen Thomas was for and on behalf of one Kochu Thommen Kuruvilla. Punnen Thomas executed a release deed in favour of Kuruvilla in 1121 M. E. On 8-5-1128 Kuruvilla mortgaged the suit property for Rs. 37,000/- in favour of Travancore Forward Bank Ltd., Kottayam. As Kuruvilla did not discharge that debt, the bank obtained a mortgage decree against him. The Travancore Forward Bank Ltd. was amalgamated with the State Bank of Travancore (the appellant herein) . Thereafter the State Bank of Travancore was impleaded as an additional plaintiff in that suit. On 12-8-1121 M. E. four members of the Ezhava Marumakkathayam Tharwad referred to earlier instituted the suit from which this appeal arises seeking possession of the suit property. The first plaintiff (since deceased) claimed to be the Karanavan of the Tharwad. Their case is that Krishnan Krishnan who deposited Rs. 454/- into Court and took delivery of the suit property was only an agent of the Tharwad. He had no right in that property. He was entitled to keen possession of the property until the amount deposited by him into Court was repaid to him. It was further alleged in the plaint that there was an agreement between Krishnan Krishnan and the plaintiffs in the suit wherein the deposit was made that Krishnan Krishnan should redeliver the property to the Tharwad on receiving the amount in question. The plaintiffs in the present case offered to pay to Krishnan Krishnan's representative the sum of Rs. 454/-.
(3.) The agreement alleged to have been entered into between the plaintiffs in the first suit and Krishnan Krishnan has neither been accepted by the first appellate Court nor was it relied upon by the High Court. There is no reliable evidence in support of that agreement.;