Dismissed

Annamma Alias Valsamma v. Madhavi

Kerala HC1 Feb 2013SA/972/2001

Case brief

AI extract

What is this about?

In this second appeal, defendants/mortgagees challenged a lower appellate court's decree granting redemption of mortgage to the plaintiffs/mortgagors. The High Court held the mortgagee estopped from denying redemption, upheld the decree, and dismissed the appeal.

What did the court decide?

The appeal was dismissed, upholding the lower appellate court's decree for redemption and recovery of possession.

Annamma Alias Valsamma Vs Madhavi — Contract and Commercial Disputes | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

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FRIDAY, THE 1ST DAY OF FEBRUARY 2013/12TH MAGHA 1934

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SA.No. 972 of 2001 ( )

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AS.95/1998 of PRINCIPAL SUB COURT, ALAPPUZHA OS.706/1994 of ADDL.MUNSIFF COURT, ALAPPUZHA

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APPELLANT(S)/RESPONDENTS 1 & 2 IN A.S./DEFENDANTS IN O.S. :-

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---------------------------------------------------------------

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1. ANNAMMA ALIAS VALSAMMA, THATTASSERI PURAYIDATHIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA.

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2. GEORGE VARGHESE, THATTASSERI PURAYIDATHIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA.

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BY ADVS.SRI.N.P.SAMUEL

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SRI.V.R.REJITHKUMAR

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RESPONDENT(S)/APPELLANTS 2 TO 6 & RESPONDENTS 3 TO 6 IN A.S./ PLAINTIFFS :-

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1. MADHAVI, W/O.LATE RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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2. PRASANNAKUMARI, D/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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3. RADHAKRISHNAN (DIED), S/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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4. BIJU MOHANAN, S/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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SA.No. 972 of 2001

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5. KALPANA, D/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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6. KUSUMAVALLY, D/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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7. RATNAKUMARI, D/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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8. MINIMOL, D/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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9. GIJIMOL, D/O.RAJAPPAN, THATTASSERI VEETTIL, ASRAMAM WARD, THEKKANARAYAD MURI, ARAYAD THEKKU VILLAGE, ALAPPUZHA DIST.

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IT IS RECORDED THAT R3 PASSED AWAY AND ALL HIS LEGAL HEIRS AND REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS PER ORDER DATED 31.7.2013 AS STATEMENT DATED 16.8.2004.

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R1,2,4,5 BY ADV. SRI.VARGHESE C.KURIAKOSE R1,2,4,5 BY ADV. SRI.PRAVEEN K. JOY

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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N.K.BALAKRISHNAN, J.

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S.A. No.972 of 2001

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Dated this the 1^st day of February 2013

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J U D G M E N T

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The defendants in a suit for redemption of mortgage

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are the appellants. The trial court dismissed the suit. But the lower appellate court granted a decree in favour of the plaintiffs. Hence, the defendants have come up in this Second Appeal.

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Notice was issued to the respondents in the Second Appeal on the following substantial questions of law framed by the appellants :-

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(a) Unless ownership regarding the plaint schedule property is conclusively proved, can a decree for redemption be granted to the plaintiff ?

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(b) In view of the pleadings and the description of the plaint schedule property and in view of the purchase certificate No.317/81 issued to the mother of the appellants regarding 3 cents of kudikidappu of the land belonging to Kochukunju

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S.A. No.972 of 2001

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-: 2 :-

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Madhavan and in view of the judgment in O.S.1038/98 of the Munsiff Court, Alappuzha, was the lower appellate court correct in holding that the kudikidappu is given from the plaint schedule property ? Will not the purchase certificate issued from the Land Tribunal be conclusive unless set aside ?

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(c) Was the lower appellate court correct in holding that the 2.5 cents of property seen in the possession of the 2^nd defendant is the trespassed portion of the plaint schedule property, in view of the assignment deed No.3609/1998 of Aleppey Sub Registrar Office executed by Vijayalal in favour of the 2^nd defendant assigning 2 cents and 850 sq. links of property given possession to the petitioner in 1991 for valuable consideration ?

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(d) Even if the 2.5 cents of property found in the possession of the 2^nd defendant is trespassed portion of the plaint schedule item No.1, can a decree of eviction be passed without a prayer for recovery of possession on the strength of title and paying court fee for the prayer ?

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(e) When the prayer B in the plaint is only for a mandatory injunction to remove the extended

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S.A. No.972 of 2001

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-: 3 :-

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portion of the kudikidappu to the plaint item No.1 property, can recovery of possession of 2.5 cents of property be granted by the lower appellate court ?

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(f) When from the description of the property given in Ext.A1 and in the plaint it is evident that what was mortgaged was only paddy land and when there is no case for the plaintiff that he filled the paddy field and made improvements, was the lower appellate court correct when it disallowed value of improvements to the 1^st defendant, in spite of sufficient evidence that she had made improvements ? Was the lower appellate court correct when it ordered redemption of mortgage without directing to give value of improvements ?

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(g) In view of Ext.B1 and B2, was the lower appellate court correct in not finding that the 1^st appellant has perfected title to the plaint schedule property by adverse possession ?

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(h) Was the lower appellate court justified in upsetting the judgment and decree of the trial court ?

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The plaint schedule property originally belonged

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to Devaki, the mother of the plaintiff. She mortgaged the property in favour of Rajamma as per mortgage deed

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S.A. No.972 of 2001

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-: 4 :-

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No.2628/68. A written statement was filed jointly by defendants 1 and 3. Though it was contended that the plaintiff has no title to the plaint schedule property and that the jenmi of that property was one Madhavan, it was not stated in the written statement that as to how the first defendant obtained the property. It was contended that the assignment of 'otty' does not confer the plaintiff or others any right over the plaint schedule property but it was not stated how or under whom the first defendant was claiming right. The 2^nd defendant was impleaded in the suit since the building constructed in the property was seen protruding into the plaint schedule property and that portion of the building was in the possession of the 2^nd defendant. A claim for recovery of possession was also made by the plaintiff. It was in fact contended that the 2^nd defendant is not a necessary party to the suit but arguments have been vehemently advanced by the learned counsel for the appellants that the 2^nd defendant has obtained right over an

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S.A. No.972 of 2001

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extent of about 3 cents of land as 'kudikidappu' right through the Land Tribunal. Admittedly, the plaintiff was not a party to the proceedings in which the 2^nd defendant was stated to have obtained 'kudikidappu' right. That apart, a perusal of commissioner's report and plan would make it undoubtedly clear that the said area covered by the 'kudikidappu' was totally excluded from the redemption of mortgage granted by the court below. But, now a strange contention has been advanced that the said 'kudikidappu' which is excluded was the one granted in favour of the mother of the 2^nd defendant and that the 2^nd defendant has obtained another assignment of 'kudikidappu'. It is not known in respect of which building such a 'kudikidappu' right was granted. That apart, there was no such case for the defendants in the written statement filed by them nor was any such case advanced during the trial of the suit. Therefore, there is absolutely no merit in the contention advanced by the appellants/defendants.

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S.A. No.972 of 2001

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-: 6 :-

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Before this Court so many documents were produced by the appellants to contend that the property originally belonged to one Madhavan and that the plaintiffs had no title to the property. Another contention that was advanced by the appellants was that the plaintiff and others had earlier filed OP (DR) No.98/1979 before the Principal Munsiff Court, Alappuzha. That was filed under the provisions of the Agriculturist's Dead Relief Act (Kerala Act 9 of 1970). That OP was dismissed by the court for the reason that the said petition was filed beyond the period prescribed under that statute. That was not a petition for redemption. It is inconceivable how the dismissal of that OP will take away the right of the mortgagor or his assignee to get redemption of the mortgaged property.

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As said earlier, there was no case for the defendants that they have obtained right over the property under any other document or under any other person. Being the mortgagee first defendant is estopped from

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S.A. No.972 of 2001

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-: 7 :-

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denying the right of the plaintiff as the mortgagor to redeem the mortgaged property. Admittedly, the suit was filed within the period prescribed. Therefore, the unfounded denial of title of the mortgagor to redeem the mortgage was rightly found against by the lower appellate court.

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Though a vague plea was raised by the defendants that they have prescribed title by adverse possession, that plea is also found to be devoid of any merit, for, being the mortgagee, they cannot prescribe title against the mortgagor. Adverse possession must commence from wrong. Though it is contended that the plaintiffs did not obtain right of the mortgagor, that has already been found against. The plaintiffs are the mortgagors and first defendant is already a mortgagee. As such, the plea of adverse possession is also bereft of any merit. As stated earlier, the 2^nd defendant was impleaded only because of the fact that the construction of the building slightly protruded

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S.A. No.972 of 2001

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-: 8 :-

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into the plaint schedule property. It is in view of that fact the plaintiffs sought recovery of possession of that portion.

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The evidence would show that Rajamma assigned the right to Sreedharan Pillai as per Ext.A3. The fact that the plaintiffs are the persons who claimed right under the original mortgage is not disputed. If the plaint schedule property is mortgaged as per Ext.A2, then certainly the right of the plaintiff to redeem the mortgage cannot be denied by the 1^st defendant who is the only mortgagee. The contention advanced by him that he is not claiming any right under the mortgage is bereft of any merit. Simply by saying that the landlord of the property is somebody else, the 1^st defendant, who is only a mortgagee cannot deny the right of the mortgagor to claim redemption. The learned counsel for the respondent has also pointed out that in fact in the earlier petition (i.e., OP (DR) No.98/1979) Sreedharan Pillai was shown as the 2^nd respondent. He (Sreedharan Pillai) was the predecessor in interest of the

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S.A. No.972 of 2001

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-: 9 :-

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defendants. It is also pointed out by the learned counsel for the respondents that the alleged order from the land tribunal was obtained by the 2^nd defendant during the pendency of this case without impleading the respondents herein. Therefore, on that ground also the 2^nd respondent cannot resist the suit for redemption or for recovery of possession. Since the plaintiffs have proved their title to the property including the small portion of the building protruding into the plaintiffs' property, the plaintiffs were rightly granted decree for recovery of possession also by the courts below. The decree for redemption granted by the lower appellate court also does not require interference for the reasons stated earlier.

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This appeal is accordingly dismissed.

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Sd/-

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N.K.BALAKRISHNAN, JUDGE.

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Ani/Jvt/JJJ

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As per order dated 3.6.2014, while dismissing R.P.No.787/2013 in S.A.No.972/2001, the Hon'ble Court

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S.A. No.972 of 2001

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-: 10 :-

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observed that “during the execution of the decree, the execution court can explore the possibility of settlement by providing double the extent of the land covered by encroachment and/or providing anything more to the decree holder provided the parties agree to the same.”

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Sd/Registrar (Judicial)

Annamma Alias Valsamma v. Madhavi

Case brief

What is this about?

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Annamma Alias Valsamma v. Madhavi

Case brief

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