RAMANUJA NAIDU Vs. V KANNIAH NAIDU

JUDGEMENT

(1.) The first defendant in O.S. 329 of 1976, Munsiff Court, Thirukoilur, has filed this appeal against the judgment of a learned single judge of the Madras High Court rendered in S.A. No 93 of 1974 dated 27-8-1976, after having obtained special leave in Special Leave Petition No. 4469 of 1977 by order dated 25-1-1978. The plaintiff and the 2nd defendant in the suit are the respondents herein.

(2.) The plaintiff filed the suit for declaration of his title to the suit property and for recovery of possession of the same. The suit property is the northern 33 cents of dry land out of 65 cents in survey No. 217/ 4 in Payyur village. It belonged to the second defendant and his minor sons. The second defendeant executed Ext. B-1 registered usufructuary mortagage dated 12-9-1966 to one Chellian, DW-3 for a sum of Rs. 6000/- The case put forward by the plaintiff was that the suit property belonged to the second defendant, and he subsequently sold the suit property to him by sale deed Ext A-1 dated 5-6-1976 for Rs. 1,100/- with direction to redeem Ext B-1. mortgage. The sale deed was registered on 7-6-1976. He further alleged that the second defendant on 5-5-1976. (ExB-2) The plaintiff objected to registrtion, but it was futile. The plaintiff alleged that the sale deed executed in his favour is anterior to Ex-B-2. and so the first defendant has no title to the suit property. It was in these circumstances that the plaintiff laid the suit for declaration of his title and recovery of possession, impleading his vendor, the second defendeant.

(3.) The first defendant contended that he purchased the property from the second defendant vide Ex. B-2 sale deed dated 5-5-1967with a direction to redeem Ex. B-1, mortgage, that he redeemed Ex. B-1, Mortgage and discharged the liability of mortgagee, Chellian (DW-3) on 10-5-1967, took possessin of property and cultivated the same. It is thereafter with the knowledge of the above facts, the plaintiff took the sale deed due to enmity, on 5-6-1967. The document in his favour dated 5-5-1967 is genuine and earlier in point of time and conveyed valid title to the suit property. Plaintiff has no valid or proper title as per Ex. A-1 and, so, the plaintiff's suit for title and possession is unsustainable. The second defendant contended that he executed the sale deed to the plaintiff as stated, and the subsequent execution of the document in favour of the first defendant is sham and ineffective. The learned Munsiff, by judgment dated 3-3-1969 found that the sale deed executed by the second defendant in favour of the first defendant (Ex. B-2) is earlier in point of time, to the sale deed executed by the second defendant in favour of the plaintiff, that Ex. B-2 is true and valid and, dismissed the suit. The appeal filed by the plaintiff, the learned subordinate Judge, Cuddalore, by judgment dated 26-3-1973, held on an analysis of the facts and circumstances, that the sale deed - Ex. B-2 was executed by the second defendant in favour of the first defendant on 5-5-1967, which is earlier in point of time to the sale deed executed by the second defendant in favour of the plaintiff on 5-6-1967, and that Ex. B-2 is valid and genuine. It was further held that on the date of the sale deed, Ex. A-1, in favour of the plaintiff, the second defendant had no subsisting title to the suit property and the plaintiff did not acquire valid title to the suit property. Ex. A-1 was held to be invalid in law. The Judgment and decree of the trial Court were affirmed.