The 5th defendant, as a possessory sub-mortgagee, obtained an advantage in derogation of the rights of the other persons interested in the property and was held to hold the advantage for the benefit of all persons interested in the property.

1. This is an appeal filed by the plaintiff against the judgment and decree passed by the Additional Temporary Second Judge, Kottayam, on 11th Kumbhom 1116, dismissing his suit O.S. No. 96 of 1102 on the file of the District Court of Kottayam which was for redemption of a mortgage and puravaippa. The appeal, besides impeaching the decree, attacks the findings recorded by the learned judge that in the event of redemption compensation for improvements is payable by the plaintiff.

The properties sought to be redeemed are Cherikkal lands, that is to say, "lands on the summit and slopes of hills cleared for purposes of cultivation". A certain Mannoor Tarwad originally held the properties on Adiyara tenure as early as the year 983 M.E. That Tarwad usufructuarily mortgaged the properties to one Valluvasseril Kurien Mani in the year 1021 and assigned the equity of redemption in the year 1027 in the name of one Ramaru Kartha benami for the mortgagee. Ext. W is the deed of assignment. On even date Kartha gave a surrender in favour of the said Mani acknowledging his benami character and the real title of Mani. On 20th Chingom 1062 Kurien son of the said Mani gave a usufructuary mortgage of the properties in favour of Varkkey Thomman, the father of defendants 1 to 3 for Rs. 500. Ext. B is the deed of mortgage. On 12th Karkadagom 1062 the said Kurien executed a puravaippa, i.e., a subsequent simple mortgage for Rs. 350 in favour of the mortgagee. Ext. C is that deed of puravaippa. The mortgagee Varkey Thomman died thereafter, leaving defendants 1 to 3 as his heirs. On 21st Vrischigom 1083, the 2nd defendant gave a sub-mortgage of 1/3 of the properties for Rs. 684/- to defendants 4 and 5. Ext. A is the sub-mortgage deed. Three days later, defendants 1 and 3, gave a sub-mortgage of their 2/3 interest also in favour of defendants 4 and 5 for Rs. 2052. The document is not filed, but the fact is admitted. Thus, defendants 4 and 5 became the sub-mortgagees of the entire interest covered by Exts. B and C.

2. On 23rd Thulam 1096, Kurien Mani, the son and representative of the aforesaid Kurien, assigned the equity of redemption over the properties in favour of the 6th defendant. Ext. AD is the deed of transfer. The 6th defendant in his turn assigned his rights in favour of the plaintiff on 9th Kumbhom 1102. Ext. D is the deed of transfer in favour of the plaintiff. These are the facts relied upon by the plaintiff to entitle him to a decree for redemption.

3. There were only 6 defendants to the suit originally. The 4th defendant died pending the suit on 21st Thulam 1107 and his legal representatives were impleaded as defendants 7 to 14. The respondents to this appeal are defendants 1 to 3 (respondents 1 to 3), defendants 5 and 6 (respondents 4 and 5) and defendants 7 to 14 (respondents 6 to 13).

4. The suit was filed on 17th Kumbhom 1102. Along with the suit the plaintiff filed an application for an injunction restraining the defendants from effecting improvements on the properties and from altering their appearance in any other manner, and obtained an ad interim order. The plaintiff also filed an application for the issue of a commission to inspect the properties and report on their then-condition. The court appointed a commissioner who inspected the properties in the presence of the plaintiff and defendants 2 and 5. The Commissioner submitted his report on 9th Medom 1102 which is Ext. R in the case. The 5th defendant filed written statement on 27th Edavom 1102 and the 2nd defendant filed written statement on 27th Mithunam 1102. The remaining defendants were ex-parte.

5. The 2nd defendant admits the plaintiff's claim and agrees to a decree as sued for. The 5th defendant contended inter alia that within the boundaries shown in the mortgage deeds as also in the plaint, a much larger extent and other survey numbers, then the extent and survey numbers shown in the plaint are comprised, that in that extra extent the sub-mortgagees have effected c