AS/16/1955 of THANDAMMA Vs PONVELI JOSEPH on 8 June 1956

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IN THE HIGH COURT OF THE STATE OF 'TBAVANCORE-COamI AT ERNAh.1JLAU.

Present:+

The Hon'ble Shr1 K.T. Koshi,Chief Justice-and The Hon'ble ShriG, Kumara Pillai, Judge.

A.S. No. l6 of 1955

Against the dec.ree in Original Suit No. 115 ot 1950 of theAnj1kaimal District Court.

tie t @t1ffxt,rxjrx Appellant:- Plaintiff.

Tbandaua, Wife ot Mukkath Augusty and daughter of PanaseryPali, Arur Muri, Arr Proverthy, Sherthalai Taluk By Advocate Shri A.s. Krishna Iyer.

Respondents:- Defendants.

l. Ponveli Joseph son of Antha, Kumbalang1 Muri, KubalangiVillage,Cochi.n-iKanayannur Taluk.

2. Peter, son ot 1st respondent do.

do.do.

By Advocate Shri K• Rama Iyer.

This Appeal Suit having been finally hes.rd on 4·6-1956, this court on 8·6·1956 delivered the following:- lJ]DGMENT.

This is a plaintiff's appeal d1.rected against the judgment arJCidecree in o.s.115 of 1950 on the file of the District Court of Anji-ka1.mal refusing to·set aside an order for re-delivery of the plaint·schedule property to defend.ant 1 1n the suit.The plaintiff as alsodefendant l claimed to bave obtained the right to possession pursuantto saJ.e ce.rtif1cates g.ranted by the court, the plaintiff claimingunder the ce.rt1f1cate issued in 0.S,No. 102 of 1107 on the file ofthe lower court and defendant 1 under the certificate granted in o.s.No. 324 of 1101 on the file of the Cochin D1strict Munsiff's Court.Defendant 1 when dispossessed by the plaintiff pursnant to the salecertti'icate in her f'avou.r applied for re-delivery and that was allowedoTbe plaintiff tberefo.re brought the suit giving rise to this appeal toset aside the o.rder for re-delivery, but that suit was unsuccessful.Hence the appeal..

The appeal came up before us for final hearing on 4-6-1956 and.we heard thesppellBnt • s 1ea.rned counsel almost completely and t belea.med counsel t"a.r the .respondent 1n part.we foundthat an adfudication on strict merits will .resul.t in great ba.rdship to one side or .

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the othe.r.At the same time· both sldes bad their strong pointsA suggestion :fl-om the Bench ta bave the matte.r decided 1n such a wayas to avoid hardship to either side was weleomed by both sides andIi,,with their tacit assent we thought tbat if the plaintiff' 1s allowedIIto .redeem the p.rope.rty on payment of Rs. l,500/- to defendant 2 (son¥of defendant 1) within a pe.r1od of six months, that would be p.roperadjustment of the rights and equities of the parties.Wither sidebad not much to say against it and we therefore proceed to pass adecree accordingly Within su: months f.rom this ,date the pla:\;ntiff will pay defen-dent 8 Rs, 1,500/- and obtain re-d.elivery of t-he propertyi±..-If the plaintiff .fails to disemrge the burden thus thrown on he.r thesuit will stand dismissed with costs. but 1f the deposit 1s made with-,.¥1n the period specified the. plaintiff will be. given delivery of theproperty with all the improvements thereon. The alll>unt fixed is 1nlieu of the mortgage money, value of improvements, etc,, due to def'en-.dant 2 am 1t 1 s 1n addition to the amount paid into the cou.rt by theplaintiff towards mesne profits and withdraw by defendant ,Eitherside will not have any further claim against the othe.r in .respect otthe plaint scheduJ.e property.

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The -appeal Will stand disposed of' as above and a decree onthe ahove lines will follow.

Orde.r acco.rdingly.

Sd/- K.T. Koshi,C.J.,Sd/- G, Kumare Pillai, J

'(True Copy)

-Z, tDy. Registrar,for Registrar.

A.S. No. l6 of 1955.Copy of Jmgment.

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q.g. s"6