ABDUL KHADER SAHIB Vs. ISMAIL THARAKANAR

JUDGEMENT

(1.) The appellant is the 2nd defendant in the Trial Court. He has filed the appeal from the decree of the Trial Court, declaring the plaintiff's title to the property described in the plaint schedule, and directing recovery of the same from the 2nd defendant with mesne profits.

(2.) The plaintiff's case was that this property, Sy. No. 329/4 belonged to one Subbiah Mudaliar who had mortgaged it to one Sappani Ammal. The equity of redemption was purchased by the plaintiff under Ext. Q dated 23.4.1117. The mortgage right was assigned by Sappani Ammal in favour of the 1st defendant under Ext. C dated 21.5.1118. The plaintiff alleged that the 3rd defendant had paid the mortgage amount to the 1st defendant and had obtained a release Ext. C(1) on 25.10.1118. The plaintiff purchased the property from the 3rd defendant under Ext. ! dated 24.11.1121. The 2nd defendant was stated to have trespassed on this property. On these allegations he sought for a declaration of title and recovery of property with mesne profits at the rate of 8 kottahs of paddy per annum. The suit was resisted by defendants 1 and 2 who contended that Ext. C(1) was not genuine and that it would not extinguish the 1st defendant's rights as mortgagee. The 1st defendant had assigned this mortgage right to the 2nd defendant on 20.9.1121 under Ext. VII. The alleged trespass was denied. They also contended that mesne profits would not amount to more than 3 kottahs of paddy per annum.

(3.) The suit was tried along with O.S. No. 178/20 pending in the same court and evidence was recorded in the latter case. That was a suit by the 3rd defendant against the original defendant in that case who was said to be a lessee of this property under him. The Trial Court held that Ext. C(1) was genuine and valid and that Ext. VII under which the 2nd defendant claimed was inoperative. Both the suits were decreed in favour of the respective plaintiffs by the Trial Court.