HIGH COURT OF KERALA
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(1.) This second appeal is filed by defendants 1 and 2 in a suit for declaration of title to, and possession of the plaint property and for consequential injunction. The plaintiff claimed title and possession on the basis of a Court sale and delivery through Court. Ex. P1 is the sale certificate and Ex. P2 the copy of delivery list in the matter. Patta for the property was also issued in her name. Ex. P2, and she Paid tax for the property for which she obtained Ex. P4 receipt. Before delivery of property the first defendant had filed the original of Ex. P5 petition objecting to the delivery on the ground that the plaint schedule property belongs to him and it is not liable to be sold for the decree debt concerned. Ex. P5 petition was rejected. The order of rejection has not been produced in the case. Sri Vyason Poti, learned counsel for the petitioner submitted that he may be allowed to produce the said order as it would indicate that Ex. P5 was rejected only on the ground that it was an anti delivery obstruction petition and as such not maintainable in law and the dismissal was not on the merits of the matter. As there is no application made under O.41 R.27. I have not allowed the document to be produced and marked in the case. I would state, however that even proceeding on the basis that Ex. P5 was disposed of not on the merits but only on the ground of its maintainability will not make my conclusion in the case any different.
(2.) The suit in which delivery is alleged to have been taken by the plaintiff was a suit for setting aside a Partition deed and recovery of the plaintiff's 1/4th share in the plaint schedule properties in that suit. The present plaint item was included in the plaint schedule as Item No. 12. In that suit the allegations were that all the properties scheduled to the plaint absolutely belonged to one Ummini Kochan, maternal grandfather of the plaintiff in the suit (who is the plaintiff in the present suit also) as well as of the third defendant therein, 1st defendant there was Ummini Kochan's wife and the 2nd defendant, a daughter. One Narayanan Sreedharan through whom the defendants in the present Suit claim title was the 4th defendant in that suit (which was OS 1229/1113 of Trivandrum Munsiff Court). The partition deed that was sought to be set aside in that suit was a deed of 1113 entered into by defendants 1 to 7 therein. By that document Narayanan Sreedharan had got the properties. The preliminary decree was passed in the suit on 18-1-1943 (the preliminary decree and the final decree are contained in Ex. D10 marked in the case). That had set aside the partition deed of 1113 and the plaintiff was declared entitled to get 1/4th share in the properties. There was also a direction therein for partition by metes and bounds of plaintiff's 1/4th share. Defendants 1 and 2 were made liable for costs and mesne profits were to be provided in the final decree. As per the final decree we find properties which do not take in Item 12 of the plaint in that suit (plaint schedule property in the present suit) allotted to plaintiff, 3rd defendant and 4th and 5th defendants. Defendant 1 is made liable for mesne profits of the properties to be paid to plaintiff and 3rd defendant. A charge is also created for the mesne profits over the 1st defendant's share in the properties. It is in pursuance of this that the plaintiff not the present plaint property sold in Court auction and is now alleged to have sot delivery of the same,
(3.) The appellants (defendants in the present suit) were admittedly not parties to the earlier suit. However, they claim through Narayanan Sreedharan. who was the 4th defendant in the earlier suit. According to the appellants Narayanan Sreedharan was the owner of the plaint schedule property and his rights were assigned to 1st appellant by Ex. D7 dated 11-9-1953. They have also produced Exs. D4, D5 etc., to prove that Ummini Kochan had only a leasehold right in the property, which Narayanan Sreedharan sot in the partition of 1113 and then from the jenmi. the lessor's right was also obtained by Sreedharan. The appellants contended that the plaintiff never obtained delivery of property and they were in possession and enjoyment of the property.;
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