JUDGMENT

This Second Appeal is filed challenging the judgment and decree of the learned Subordinate Judge (Camp) at Padmanabapuram made in A.S.No.29 of 1995, dated 08.10.2002 confirming the judgment and decree of the learned District Munsif, Padmanabhapuram, made in O.S.No.230 of 1993, dated 16.02.1995.

2.The above Second Appeal has been admitted, on 25.08.2004, on the following substantial questions of law:-

“i. Whether the lower appellate Court is right in deciding the appeal without framing the points for determination in the appeal?

ii. Whether the Courts below are right in holding that the respondents have right over the Plot No.99 which was allotted to the appellants' vendor in O.S.No.486/1119 M.E., who is the 21st defendant in that suit? and iii. Whether the Courts below are right in holding that the direction as contained in Ex.A-4, namely, decree in O.S.No.486/1119 M.E., is as redemption?”

3.The appeal has been filed by the plaintiffs, who have concurrently lost in both the Courts below.

4.The parties are referred to the same litigative status as before the Trial Court.

5.The facts in brief, which are necessary for the disposal of the above Second Appeal, are as follows:-

5.1. Before discussing the facts of the case, it would be useful to set out the schedule of property subject matter of the suit in O.S.No.230 of 1993 for more fully appreciating the claims of either parties hereinbelow:-

SCHEDULE OF PROPERTY ----------------------------------------------------------------------------------------

District Kanyakumari Sub-District Palliyadi Taluk Kalkulam Village Kappiyarai Desom Kappiyarai Tenur Jenmom Lekkom 205 Old Sy.No. 1819 R.S.No. 62/2, 3 and 11 part Extent 75 cents Description of the property : The property having an extent of westernmost 28 cents (11.5 acres) comprised under R.S.No.62/2 out of plaintiffs' 75 cents property as per sale deed No.2865/1968 dated 12.08.1968 in Pulayan Kattu Villai Purayidom including Trees thereon.

Boundaries West : R.S.No.62/1 belonging to defendants 2 & 3 North : R.S.No.62/4 belonging to 1st defendant East : R.S.No.62/3 belonging to the plaintiffs South : R.S.No.59 belonging to Sathiarajan and others.

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Plaintiff's Case :-

6.The suit property formed part of a larger extent of over 6 acres and 65 cents and was comprised in Old S.No.1819 of Kappiyarai Village. The properties belonged to the Tharwad of the Velliya Veedu Nair Family. The properties had been partitioned amongst the members in a partition suit bearing O.S.No.486 of 1119 ME (English Year 1944) on the file of the District Munsif, Padmanabapuram.

7.The plaintiffs would submit that prior to this partition, the plaint schedule and portions on the eastern boundaries were outstanding on mortgages in favour of the plaintiffs' ancestors and they were in possession and enjoyment of the same in lieu of interest. The plaintiffs had inherited this right of mortgage by inheritance and succession and continued in possession of the same.

8.While so, on 12.08.1986, one Kanakkuthambi Chenbakaraman Narayanan Thambi sold 75 cents, which included the suit property, to the plaintiffs in which, he has also confirmed their earlier possession by way of mortgage. The plaint schedule property was the western most extent of the said extent of 75 cents. The plaintiffs' vendors was the 21st defendant in the suit O.S.No.486 of 1119 M.E. (hereinafter referred to “as O.S.No.486” for brevity). In the above suit, he had obtained a decree for a 1/8th share in the plaint survey number along with other properties. The survey number, in which the property subject matter of the extent suit was comprised, was described as C-23. In the final decree, the plaintiffs' vendor was allotted 74.500 cents, which was described as Plot No.9 in the sketch attached to the final decree. The defendants had no right to the above property. In the re-settlement, the plaintiffs' properties corresponded to