## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH**
**WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934**
## **RSA.NO. 162 OF 2012 ()**
**--------------------------------AS.130/2008 OF THIRD ADDITIONAL DISTRICT COURT, COURT, TRIVANDRUM OS.1208/2004 OF THIRD ADDITIONAL MUNSIFFS' COURT, TRIVANDRUM**
## **APPELLANT(S)/APPELLANTS/DEFENDANTS :**
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**1. THANKAPPAN ASARI, AGED 72 YEARS S/O. KRISHNAN ASARI, RESIDING AT PULIYARAVILAKAM KONCHIRAVILA, MANACAUD VILLAGE, THIRUVANANTHAPURAM.**
**2. SUBHADRA , AGED 68 YEARS W/O. THANKAPPAN ACHARI, RESIDING AT PULIYARAVILAKAM KONCHIRAVILA, MANACAUD VILLAGE, THIRUVANANTHAPURAM.**
**3. SUKUMARAN ASARI, AGED 68 YEARS S/O. KRISHNAN ASARI, RESIDING AT PULIYARAVILAKAM KONCHIRAVILA, MANACAUD VILLAGE, THIRUVANANTHAPURAM.**
**BY ADVS.SRI. VETTATHU G.SUDHI SRI.K.RAJENDRAN**
## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS :**
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**1. SARADA DEVI, AGED 58 YEARS WIDOW OF SHANMUGHAN ASARI, GOVERNMENT SERVANT RESIDING AT TC 49/892, MANITHA, KONCHIRAVILA MANACAUD VILLAGE, THIRUVANANTHAPURAM.**
**2. S.S.ARUN , AGED 29 YEARS S/O. SHANMUGHAN ASARI, RESIDING AT TC 49/892 MANITHA, KONCHIRAVILA, MANACAUD VILLAGE THIRUVANANTHAPURAM.**
## **R.S.A. No.162 of 2012**
**3. S.S.KIRAN , AGED 29 YEARS S/O. LATE SHANMUGHAN ASARI, RESIDING AT TC 49/892 MANITHA, KONCHIRAVILA, MANACAUD VILLAGE THIRUVANANTHAPURAM.**
**BY ADV. SRI.RAM MOHAN.G. BY ADV. SRI.G.P.SHINOD BY ADV. SRI.MANU V. BY ADV. SRI.K.VASANTHA KUMAR**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
**==================================== R.S.A. No. 162 of 2012 ==================================== Dated this the 06[th] day of June, 2012 J U D G M E N T**
Defendants in O.S. No.1208 of 2004 of the court of learned Third Additional Munsiff, Thiruvananthapuram are the appellants before me challenging the decree in that suit as confirmed by the learned Third Additional District Judge, Thiruvananthapuram in A.S. No.130 of 2008.
2. Respondents-plaintiffs sued the appellants for declaration of their title, possession and for fixation of boundary and injunction. They contended that plaint A schedule, the total extent of which is 47 cents belonged to the late Ayyappan Asari Raman Asari and on his death it devolved on his children, Narayanan Asari, Krishnan Asari, Parameswaran Asari, Madhavan Asari and Ammukutty, each of them getting 1/5 share. They claimed that Madhavan Asari was enjoying the 9.400 cents (plaint B schedule) towards the northern portion of the total extent as allotted to him in an oral partition which was upheld in O.S. No.1449 of 1988. Madhavan Asari was the absolute owner in possession and enjoyment of the said 9.400 cents. While so, he mortgaged that property to Krishnan Asari as per document
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No.6148/1124ME. Madhavan Asari later executed a superior mortgage in favour of Kochupilla Kunji as per document No.1366/1952 (Ext.A4) directing that the said Kochupilla Kunji shall redeem the mortgage under document No.6148/1124. Kochupilla Kunji assigned her right to Bhagavathy Thankamma as per Ext.A5, document No.1509/1954. Bhagavathy Thankamma redeemed the mortgage of 1124ME as per Ext.A6, document No.1510/1954. Madhavan Asari had borrowed Rs.50/- from Bhagavathy Thankamma as per purakkadam deed No.106/1955. Bhagavathy Thankamma assigned her right to Parukutty Amma Gourikutty Amma as per document No.2021/1956. Madhavan Asari borrowed a further sum of Rs.40/- from the said Parukutty Amma Gourikutty Amma and executed purakkadam deed Nos.2748/1956 and 816/1959. The said Parukutty Amma Gourikutty Amma assigned her right over plaint B schedule as per Ext.A7 in favour of Shanmughan Asari. According to the respondents, the mortgages above referred became irredeemable by the law of limitation and Shanmughan Asari became the absolute owner in possession of the 9.400 cents (plaint B schedule). On his dying intestate on 29.07.2001, plaint B schedule property devolved on the respondents as his legal
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heirs. It is the further contention of the respondents that Madhavan Asari had executed sale deed No.3856/1968 concerning plaint B schedule in favour of the appellants allowing them to redeem the mortgage. Appellants filed O.S. No.443 of 1989 for redemption of the mortgage but that suit was withdrawn, according to the respondents as the suit had become barred by the law of limitation.
3. Appellants contended that description of plaint B schedule is not correct and that plaint B schedule and building No.TC 49/535 situated therein belong to the appellants. They claimed that Shanmughan Asari, the predecessor-in-interest of respondents did not get possession of the property and that he was only an assignee-mortgagee without possession. It is the further contention of appellants that the mortgage right was extinguished by deposit of the mortgage money in O.S. No.443 of 1989.
4. Trial court found that contention of appellants that Shanmughan Asari did not get possession of the property and that he is an assignee-mortgagee without possession of plaint B schedule cannot be accepted in the light of the documentary evidence produced by the respondents. Trial court also found that
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so far as co-ownership right claimed by the parties is concerned, in view of allotment of 9.400 cents to Madhavan Asari towards extreme north of plaint A schedule by the other co-owners which was recognized in O.S. No.1449 of 1988, contention of appellants that they are co-owners of plaint B schedule with the respondents cannot be accepted. Accordingly a decree was granted in favour of the respondents declaring their title and possession over plaint B schedule and restraining the appellants from trespassing into the plaint B schedule. That judgment and decree were confirmed by the first appellate court.
5. Learned counsel for appellants contends that though sale deed No.3856/1968 and mortgage deed No.6148/1124 were entrusted by the appellants to their counsel for production in court, it was not done. According to the learned counsel these documents would show that respondents or their predecessor-ininterest did not get possession of the property. Further contention is that by deposit of the mortgage money in O.S. No.443 of 1989, the mortgagor-mortgagee relationship stood extinguished. Learned counsel has placed reliance on the decision in **Sivasankara Pillai v. Narayana Pillai** (2011 [4] KLT 769).
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6. The documents that appellants now rely were not produced either in the trial or the first appellate court. One document that is sought to be produced is mortgage deed No.6148/1124 executed by Madhavan Asari in favour of Krishnan Asari which is not disputed by the respondents also. The other document is sale deed No.3856/1968 executed by Madhavan Asari in favour of the appellants. That such a sale deed was executed by Madhavan Asari is admitted by the respondents also though according to them, by the said assignment deed appellants did not get any right or possession of the property.
7. It is not disputed by the appellants also that Madhavan Asari was given exclusive right and possession of 9.400 cents (plaint B schedule) towards northern extremity of plaint A schedule and that was recognized in O.S. No.1449 of 1988. The said Madhavan Asari executed mortgage deed No.6148/1124 in favour of Krishnan Asari. He then executed a superior mortgage in favour of Kochupilla Kunji as per Ext.A4, deed No.1366/1952 with right to redeem the mortgage under document No.6148/1124. Exhibit A4 is not disputed. The said Kochupilla Kunji assigned her right in favour of Bhagavathy Thankamma as per Ext.A5 which is not disputed by the appellants. It is also not
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disputed by the appellants that by document No.1510/1954 the said Kochupilla Kunji redeemed the mortgage under document No.6148/1124. There is also no dispute regarding the further transactions Madhavan Asari had with the assignee of Kochupilla Kunji (Bhagavathy Thankamma) and the mortgagee's right ultimately reaching Parukutty Amma Gourikutty Amma as per document No.2021/1956. The said Parukutty Amma Gourikutty Amma assigned her right and possession in plaint B schedule in favour of Shanmughan Asari as per Ext.A7.
8. It is not disputed by the appellants also that the documents referred above and in favour of the predecessors-ininterest of respondents recited that possession of the property was given to the mortgagee concerned. It is also not disputed that appellants though had filed O.S. No.443 of 1989 for redemption of the mortgage, that suit was withdrawn obviously for the reason that the suit had become barred by limitation. According to the learned counsel, the documents in favour of predecessors-in-interest of respondents though recited that possession was given to them, there was no actual delivery of possession. But having regard to the facts, circumstances and evidence on record including that the documents are of the years
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1952 to 1966 the contention that the predecessors-in- interest of respondents did not get possession of the property notwithstanding the recitals in the relevant documents cannot be accepted. Respondents have produced Ext.A8 series for payment of revenue for plaint B schedule.
9. Yet another contention advanced is that there is a building in plaint B schedule. But the trial and first appellate courts referring to Ext.A4, judgment in O.S. No.443 of 1989 found that there is no case for the appellants in that case that there is any building in plaint B schedule.
10. The decision relied on by the learned counsel in my view does not apply to the fact situation on hand. There, it was held that a co-mortgagor or a junior member of the tharawad who continues in possession over the excess share got redeemed by him is not a mortgage, after redemption the mortgage comes to an end and hence he could only claim that he is entitled to be in possession of the property till the share of the mortgage money of the non-redeemed co-mortgagors is paid. Such a situation does not arise in the case on hand. Courts below having regard to the oral and documentary evidence accepted the claim of respondents that they are in possession and enjoyment of the
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property and granted a decree for prohibitory injunction.
11. On hearing learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.
Second Appeal is dismissed.
All pending Interlocutory Applications will stand dismissed.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
